
    Michael J. Hughes, Respondent, v. Thomas Russell, Appellant.
    
      Negligence — injury to an employee operating a machine which suddenly becomes out of order — what notice'giren under the Employers’ Liability Act is insufficient.
    
    Evidence that, while an employee was at work upon a machine for stamping or embossing book covers, the machine suddenly became out of order and that the employee thereupon .went to a person whom he described as “ the foreman over me” and called his- attention to the condition of the machine and that after examining and adjusting the machine such person told the employee that the machine was all right and directed him to continué work thfereon, and that almost immediately thereafter the machine failed to work properly and crushed the employee’s, hand, is insufficient at .common law to charge-the employer with liability for the injuries thus sustained by the employee where it does not appear that the so-called foreman was employed to exercise any - duty of superintendence or inspection over the machine; but, on the contrary, it appears that another person was superintendent who was absent at the time . of the accident and whose duties, so far as. the evidence showed, had not been devolvéd upon any other person.
    A notice given under the Employers’ Liability Act which -erroneously states , the ' injured employee’s name .as Jojbn Hughes, instead of Michael' J. Hughes, and which further states the cause of the injury to have been that “ the whole machine was out of plumb',” when it does not appear that the accident was due to such a cause, is fatally defective, where the insufficiency of the notice is not. obviated by proof under the statute “that there was no intention to mislead and that the party entitled to notice was notin fact misled thereby.”
    Appeal by the defendant, Thomas Russell, from a judgment of the Sup.reme Court in favor of the plaintiff, entered in the office of the clerk of the county of Richmond on the 22d day of March, 1904, upon the verdict of a jury for $1,200, and also from an order entered in said clerk’s office on the 16th day of April, 1904 denying the defendant’s motion for a hew trial made upon the mi-nut'es.
    
      
      John Ewen, for the appellant.
    
      Sumner B. Stiles [Herhert G. Smyth and P. H. Delehanty with him on the brief], for the respondent.
   Willard Bartlett, J.:

The complaint alleged that the plaintiff, while in the employ of the defendant, was injured by reason of the unsafe and defective condition of an embossing machine furnished to him with which to do his work, and by reason of the carelessness and negligence of the foreman or other person intrusted with and exercising superintendence in behalf of the defendant.

In my opinion the plaintiff failed to establish this allegation or any state of facts rendering the defendant liable for negligence either at common law or under the Employers’ Liability Act (Laws of 1902, chap. 600).

The plaintiff was injured while at work upon a machine for stamping or embossing book covers, which, according to his testimony, after having worked perfectly on the day of the accident, suddenly became out of order. He thereupon went to one Asa Bennett, whom he describes as “ the .foreman over me,” and called his attention to the condition of the machine. He says, in substance, that Bennett then came over to the machine and, after examining it and adjusting it, told him that it was all right and directed him to continue his work upon it; that the machine appeared to work all right at first, but that upon the second attempt to operate it tlie pressure of his foot upon the treadle failed to stop the plunger as it should have done, and that the plunger descended upon his hand and crushed it. Bennett denies having been called to look at the machine before the accident, or having given any direction about it; but, assuming the truth of the plaintiff’s testimony, the proof is clear that the machine was in good order in the first place, and suddenly became out of order; and the question is whether the notice which was given to Bennett under the circumstances, and Bennett’s action in the premises, as narrated by the plaintiff, furnish a sufficient basis to charge the employer with liability.

There is no evidence tending to fehow that Bennett was employed to exercise of or inspection over the machine upon which the plaintiff was at work, unless such inference is tojbé drawn from the simple fact that the plaintiff denominated Bennett as his foreman. I do not think that was enough. The plaintiff himself testified that at the time of • the ' accident Bennett was doing his own work in. his regular .employment' upon the same kind of a machine about ten feet distant, and itappeared from Bennett’s own testimony that he was only a stamper., • There was also uncohtradicted evidence on behalf of the defendant that another. person was superintendent of the defendant’s: factory, who was absent from the building' at the timé of the accident; and there was no proof that the functions of this superintendent in his absence had been devolved upon Bennétt or any one else, It would be going further than any decided ease which I can now recall to hold that a master is liable for the sudden derangement of a. piece of machinery previously in perfect or,der where such derangement had existed only fór a few minutes before the injury complained of, and notice thereof had been given Only- to a fellow-servant or employee not' shown to have been charged with any duty in respect to the exam- - ination or repair of the machine. I conclude, therefore, that the proof was too. meager .to sustain a cause of action at common law.

■The notice served upon the. defendant was insufficient under the Employers’ Liability Act. It was. given in behalf -of John Hughes, instead of Michael J. Hughes, the plaintiff. Furthermore, it stated' the cause of the injury to be the defective condition of the stamping press in that the whole machiné was opt- of plumb;” There was no evidence tending in the slightest respect to show that the accident was due to’ such a cause. The insufficiency of the notice might have been obviated 'by proof under the statute. that' there was no. intention to mislead and that the party -entitled to notice was not in fact misled thereby but the record contains no testimony tending to establish either- of these facts..

For these reasons, I advise a reversal.

Hirschberg, P. J., Jenks, Rich and Miller, JJ., concurred.

Judgment and order reversed and new trial granted, costs to abide ' the event.  