
    Frank Nappa, Appellant, v. The Erie Railroad Company, Respondent.
    Fourth Department,
    January 8, 1913.
    Master and servant—negligence — injury by fall of skid—when liability under Employers’ Liability Act not determined on former appeal—liability of master where superintendent directs servants to work upon unsecured skid — sufficiency of notice under Employers’ Liability Act.
    On a new trial a master may be found hable for the negligence of his foreman under the Employers’ Liability Act although the plaintiff urged that issue upon a former appeal, and a judgment for the plaintiff was reversed, ii on the former trial that issue was not submitted to the jury.
    Although a skid used for loading freight into a wagon and not held in position by a cleat is not a defect in ways, works or machinery, and although the moving and securing of such skid is a mere detail' of the work, a master may be found liable under the Employers’ Liability Act if his foreman was negligent in directing servants to work upon the skid knowing that it was insecure.
    The plaintiff, an employee suing under the Employers’ Liability Act, was injured by the fall of such skid which was not secured by nailing a cleat to hold it as was the custom. Evidence examined, and held, sufficient to make out a case of negligent superintendence under the Employers’ Liability Act and that the questions of contributory negligence and of asssumption of risk were for the jury.
    Notice under the Employers’ Liability Act examined, and held, to be sufficient.
    Although a notice does not specifically state that there was negligent superintendence, it is sufficient if it states the cause of the injury and the complaint itself states a case of negligent superintendence.
    McLemait, P.J., and Foots, J., dissented.
    Appeal by the plaintiff, Frank Nappa, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Erie on the 22d day of January, 1912, upon the dismissal of the complaint by direction of the court at the close of the plaintiff’s case on a trial at the Erie Trial Term, and also from an order entered in said clerk’s office on the same day denying the plaintiff’s motion for a new trial made upon the minutes.
    
      Eugene M. Bartlett, for the appellant.
    
      Helen Z. M. Rodgers, Adelbert Moot and John W. Ryan, for the respondent.
   Kruse, J.:

On the afternoon of November 25, 1904, the plaintiff, a freight handler in defendant’s employ, was assisting in unloading barrels from a freight car into a freight house. The barrels were rolled over an iron skid or running board, about three feet square, one end of which was placed on the floor of the car and the other on the platform of the freight house. Usually the skid was secured by nailing a wooden cleat on the platform at the end of the skid, but upon this occasion that was not done, and the skid was not secured in any way. It fell while the plaintiff was standing with one foot on the skid and the other on the platform, engaged in his work, and he fell with it, a barrel, falling against his leg, and he was hurt.

The plaintiff seeks to recover damages for the injuries thus sustained. A notice was served so as to bring the case within the provisions of the Employers’ Liability Act, now embodied in the Labor Law (Laws of 1902, chap. 600; Consol. Laws, chap. 31 [Laws of 1909, chap. 36], art. 11, as amd. by Laws of 1910, chap. 352). The nature of the notice will be more fully stated hereafter. The case has been twice tried. On the first trial the plaintiff had a verdict. The judgment entered thereupon was, on appeal, affirmed by this court (123 App. Div. 915), but the Court of Appeals reversed the judgment and ordered a new trial. (195 N. Y. 176.) Upon the second trial, at the close of the plaintiff’s case a nonsuit was granted, and from the judgment entered thereupon, and the order denying the plaintiff’s motion for a new trial, the plaintiff appeals.

Upon the first trial the case was submitted to the jury upon the theory that the insecure skid was such a defect as might bring the case within the provisions of the Employers’ Liability Act, but the Court of Appeals held that the skid and cleat, moved by workmen from car to car, were no part of the ways, works or machinery within the meaning of that act; nor of the safe place to work at under the common law, but tools and appliances furnished the freight handlers, and if one was injured by the negligent act of another in using the same, it would be a risk of the employment imposing no liability upon the master, and that the defendant was entitled to have charged, as it in substance requested, that the use of the skid and cleat was a mere detail of the work and not covered by the Employers’ Liability Act.

It is now contended on behalf of the plaintiff that there was negligent superintendence in directing the men to work upon the insecure skid. But the defendant insists that the former appeal necessarily involved that question, and that it was passed upon by the Court of Appeals adversely to the plaintiff. I am of the opinion that the question is still open. While counsel for the plaintiff did urge upon the former appeal that the defendant is liable for the negligence of the foreman in requiring the workmen to proceed before the skid was fastened, that was not a ground of liability submitted to the jury on the first trial. The judge held, and charged the jury, that the skid, the floor, the freight house and the cleat used to secure the skid were all appliances or ways within the Employers’ Liability Act, stating that the grounds of negligence were in failing and negligently omitting to properly secure the appliance or skid, and explicitly instructed the jury that they must find that the accident was the result of the neglect on the part of the defendant to properly secure the cleat, to entitle the plaintiff to recover.

It appears that one car had been unloaded. The skid was then moved from that car and placed in position for unloading the car in question. The cooper who was around the freight house usually secured the skid. He carried the hammer, nails and cleat. He was called by the workmen upon this occasion to secure the skid, first by the foreman or boss, as he is called by the witnesses, and then several workmen called to him, but he did not come. Thereupon the foreman told the workmen to go ahead with their work, saying, according to the testimony of the witnesses, that by and by the cooper would come and fix the skid. While this was taking place the plaintiff was absent getting a drink of water. He returned and went to work with the other men; the skid was not secured, it fell, and the plaintiff was hurt, as has been stated. . '

Although the insecure skid was not a defect in the ways, works or machinery and the moving and securing of the skid was a mere detail of the work, as has been held by the Court of Appeals, the defendant may still be liable, if the foreman was negligent in superintending the work, by directing the men to work upon the skid, knowing that it was insecure.

I think the evidence sufficient to make out a case of negligent superintendence. (Guilmartin v. Solvay Process Co., 189 N. Y. 490.)

But it is further contended, upon the part of the defendant, that the notice served is insufficient to hold the defendant liable for negligent superintendence under the Labor Law. The statute requires the notice to state the time, place and cause of the injury. (Laws of 1902, chap. 600, § 2; now Labor Law, § 201.) The notice states that the injuries were caused “by the falling of the platform, or skid on which said Frank Happa was then standing, causing him to fall and precipitating a barrel of sugar upon him, and that the falling of said platform or skid was caused by the unsafe and improper manner in which it was placed and secured, and that said platform or skid was furnished by you and your superintendent as the way and place for said Frank Happa to use in his work, and that it was the duty of you and your superintendent to have provided a safe and proper way and place for said Frank Happa to work. This you and your superintendent neglected to do and you are hereby notified that the said Frank Happa has a claim against you for Five Thousand Dollars ($5,000.00) for the injuries sustained by him, under the statutes in such cases made and provided, and by reason of such negligence as aforesaid.”

I think the notice is sufficient. (Greif v. Buffalo, L. & R. R. Co., 205 N. Y. 239.) While the notice does not specifically state that there was negligent superintendence, it states the cause of the injury, which is all the statute requires; and the complaint itself states a case of negligent superintendence, as I think.

The judgment and order should, therefore, be reversed and a new trial ordered, with costs to the appellant to abide the event.

All concurred, except McLennan, P. J., and Foote, J., who dissented upon the authority of the decision in same case on former appeal, reported at 195 New. York, 116.

J udgment g,nd order reversed and new trial granted, with costs to appellant to abide event.  