
    Edward J. Heilig, Respondent, v. William J. Burns, Appellant, Impleaded with the Delaware, Lackawanna and Western Railroad Company, Defendant.
    Fourth Department,
    July 6, 1909.
    Master and servant — negligence — injury by fall of tie from trestle — facts not justifying recovery.
    .Action under the Employers’ Liability Act to recover for personal injuries. The plaintiff, operating a hoisting engine placed in a shanty under a coal trestle in process of construction, was injured by the fall of a timber from the trestle above. It appeared that the defendant’s foreman directed the workmen to move a tie weighing about 200 pounds along the trestle by means of a wheeled support called a “dolly.” The trestle was icy and the workmen steadied the tie by means of hooks while carrying it on the dolly. The wheel of the dolly struck a projection on the trestle, the timber swung around and fell owing to the fact that the workmen lost hold of it. There was no claim of any defect in the trestle or implements furnished to .the workmen. On all the evidence, held, that a finding of negligence on the part of the defendant by reason of the fact that he allowed the tie to be moved by means of a dolly was against the weight of evidence.
    Kruse, J., dissented, with memorandum.
    ' Appeal by the defendant, William J. Burns, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Oswego on the 31st day of October, 1908, upon the verdict of a jury for $3,500, and also from an order entered in said clerk’s office on the 29th day of October, 1908, denying the said defendant’s motion for a new trial made. upon the minutes.
    The action was commenced on the 7th day of April, 1908, against both defendants jointly to recover damages resulting from bodily injuries sustained by the plaintiff alleged to have been caused solely through their negligence. During the trial an order was made dismissing the complaint as to the defendant Delaware, .Lackawanna and Western Railroad Company (from which no apjieal is taken),' and the trial proceeded against the defendant Burns with the result stated.
    
      Elisha B.Powell and Edward Schoeneck, for the appellant.
    
      D. P. Morehouse, for the respondent.
   McLennan, P. J.:

The action is brought under the Employers’ Liability Act (Laws of 1902, chap. 600). The accident from which plaintiff’s injuries resulted occurred on the 22d day of January, 1908, at about eleven o’clock a. m. At the time he was in the employ of the defendant Burns engaged in operating a gasoline engine, which was located in a small shanty erected to protect it and him from the weather. While the plaintiff was in the shanty attending to his duties a timber fell from the deck of a large coal trestle which Burns was building for the Delaware, Lackawanna and Western Railroad Company in the city of Oswego, if. Y., through the roof of the shanty striking the plaintiff and causing the injuries for which he seeks to recover.

It is not claimed that the plaintiff was guilty of contributory negligence, and only two questions need be considered upon this appeal: 1. Was the defendant Burns guilty of such negligence as to render him liable under the Employers’ Liability Act? 2. Did the notice which was served upon Burns by the plaintiff comply with the requirements of section 2 of such act ?

The coal trestle which Burns was erecting extended in a northerly and southerly direction; the main part of the structure, where the bins were to be located, was two hundred feet long, forty feet wide, and the deck, so called, was about twenty feet from the ground, and from it, on an easy and regular grade, an approach or incline extended northerly to Utica street, where the tracks of the company’s railroad were located, and. over such incline when completed, its cars were to pass in delivering coal to the trestle. At the time of the accident two pairs of stringers had been laid upon bents about twelve feet apart and extended practically from the foot of the incline along the structure for its entire length. • Such stringers were made of timbers eight inches wide and fourteen inches deep, two of them being bolted together, so as to break joints, thus making a continuous stringer sixteen inches wide, on top and bottom, and fourteen inches deep. The upper surface of such stringers was smooth and from the top of the. incline for the entire length of the trestle proper they were laid perfectly level so that one would be under each rail of the two railroad tracks which were to be built. There was an open space of three feet, two inches in width between the stringers composing each pair and on the top of them ties were to be laid, consisting of timbers eight inches square and nine feet long,, made of Georgia pine and weighing about two hundred pounds each, which ‘had to be taken from the ground and placed upon the top of the incline and deck of the trestle. To facilitate the doing of such work and for the purpose of raising other timbers, the engine which the plaintiff was operating had been installed under the structure, at about the point where the incline connected with the deck of the trestle proper. By means of such engine and other appliances connected therewith a number of' ties had been raised from the ground and piled on the easterly pair of stringers at a point on the trestle about one hundred feet southerly from the top of the incline, and three employees, each of whom had experience in handling timbers on similar structures, were directed by the foreman or superintendent of- the defendant to move such ties to a point just south of where the incline joined the trestle proper and place them upon some boards, where they would be accessible to the carpenters, who were putting them in place. At the point where the incline and deck joined, the end of one of the timbers ■forming the stringer at the top of the incline projected an ipch and a half above the end of the corresponding timber in the-stringer on the deck of. the trestle; but this point was. not within the space over which the ties were directed to be moved. In carrying out their instructions the inen placed one of the ties, of the dimensions and weight stated, upon what is called a “ dolly,” which consists of a wheel fourteen inches wide and six inches in diameter, with a platform on top about eighteen inches square. Being thus loaded with one tie, the dolty ” was started northerly on the easterly stringer (which was perfectly level and, as we have seen, formed a walk sixteen inches wide) towards the incline, where the tie was to be put in place by the carpenters. One of the men was in front of the tie, having hold of it with what is called, a double timber hook, holding in his. hands one end of the handle, the other end resting upon the timber, which formed a lever by which the hooks could be drawn into it, and he was necessarily walking backwards on the stringer.' Another man, with a like timber hook, which was handled in the same manner, had hold of the other end of the tie and was following on the same stringer. The third employee was not aiding in moving the timber, but apparently was bossing the. job of conveying the railroad tie, which only weighed two hundred pounds, a distance of one hundred feet, upon a perfectly level walk, sixteen inches wide, and there was another stringer ‘or walk parallel to and exactly like it only three and one-half feet distant. It appears that the tie was icy, the work being done in the winter time, and that the stringers, from like cause, were more or less slippery. Instead of stopping the dolly ” at the point where the tie should have been unloaded in order to place it upon the boards, as directed, which were southerly from the top of the incline, the dolly ” was pennitted to proceed until the wheel struck the projection, to which attention has been called, the jar swung the timber around, the two men lost hold of it and it fell down from the deck of the trestle through the roof of the shanty where the plaintiff was working, and it, or portions of the roof, struck him and caused the injuries for which he complains.

It appears that while no direction was given by defendant’s foreman as to the method which should be employed in moving the ties in question, he knew, as did the defendant Burns, that in the erection of the structure the employees were accustomed to move like timbers on the deck of the trestle by means of a “ dolly” and in the same manner as the tie which fell was being moved, but in moving like timbers by such method in the erection of the structure in question, which had occupied' several weeks, no accident had occurred. It appears that it was a common and usual method and one which had been in vogue a great number of years. Of course, no witness testified that he had seen it used under exactly similar conditions, to wit, when the timber to be moved was icy; when the stringer was sixteen inches wide, was slippery and twenty feet above the ground. Witnesses testified that if the tie had been placed across the easterly pair of stringers, a rope attached to each end, two men (one walking on each) by pulling the ropes could move it safely. It is apparent that such method would be absolutely safe if the two men pulled even; otherwise not. Other witnesses testified that a better method would be to have employed four men to carry the stick, each two provided with a double-handled timber hook, two of them walking backwards, one on each stringer, and the other two following. Undoubtedly such method would be safe unless one of the men stumbled or the hooks in some manner became loosened, in which .case the timber, of course, would fall to the ground. Undoubtedly an employee who was reasonably strong could have carried the timber in question on his shoulder with perfect safety in case he did not slip or stumble. If he did the tie would fall as in this case.

Under such state of facts was the defendant Burns guilty of actionable negligence ? It is not claimed by the respondent that the defendant was negligent because of any failure to provide proper and suitable appliances for carrying the tie. It was conceded on the trial that sufficient and proper timber hooks were furnished. No' suggestion is made that the engine which the plaintiff was operating was improperly located. Neither is it urged that it and the engineer should have been protected by a stronger or more substantial shanty. It is not claimed that any part of the trestle proper or of the incline was defective, improperly constructed or unsuitable for the purposes intended. The sole claim now is that the defendant was guilty of negligence because he permitted the tie in question to be moved by means of a “ dolly ” under the conditions which existed. It is claimed that he ought to have seen to it that it was moved by one of the other methods referred to or by some method other than the one by which it was moved. This was the only question submitted to the-jury by the learned trial court. The court said : “ Was the defendant negligent in not providing a reasonably safe place to work because of the fact of the method of handling timbers which was employed oh this occasion and which in fact did result in the falling of the timber and the injury to the plaintiff ? ” No other question was submitted. Every other issue raised', either ; by the pleadings or upon the trial, was eliminated. The jury found in favor of the plaintiff upon the single question so submitted!

We think such finding is clearly contrary to and against the weight of the evidence. Two men, experienced in handling timbers, were engaged in carrying a square stick which weighed only 200 pounds. They were provided with proper and suitable timber hooks, and ' it is perfectly apparent that if each had securely fastened one of the two hooks comprising the double timber hook which he was handling into the sides of the tie, rested one end of the handle upon the timber and held the other firmly in his hand, it would have been moved in perfect safety and could not have fallen, unless one or other of the men had slipped or stumbled, which did not occur in this case. The tie fell because the hooks were not properly or securely fastened into it, or because one or both of the men, each of whom was only carrying a weight of 100 pounds, did not have a firm hold of the handle. It is not claimed that there was sufficient ice on the tie to prevent the hooks from penetrating through it and being fastened solidly in the wood. No inconvenience was experienced by the men in walking upon the stringer, which, as we have seen, formed a perfectly level walk 16 inches wide. Neither of them even slipped because of its alleged slippery condition.

The only-purpose of the “ dolly ” was to relieve the men from carrying the full weight of the tie. It did not aid in guiding the stick or affect the speed at which it was being moved. All that was regulated by the two men by means of the hooks handled by them. The slippery condition of the tie or the stringer did not, so far as appears, interfere in the slightest degree with the movement of the “ dolly.” It had been moved 100 feet safely and without mishap until the men ran it beyond the point where they were directed to deposit the tie and against the one and one-half inch projection, to which attention has been called; but even when they had thus negligently permitted the dolly ” to strike such projection it is perfectly evident that the tie would not have fallen if the two men had had their respective hooks securely fastened into it and had a firm hold of the handles.

The evidence very clearly demonstrates that the accident resulted not because an unsafe and dangerous method was employed to move the tie in question, but because of the negligence of one or both of the two men engaged in the work by failing to have the four hooks securely fastened into the timber, or because they failed to have a firm hold of the handles of such hooks, both of them being concededly coemployees of plaintiff and for their negligence it is not claimed defendant is liable. If the hooks had been thus fastened into the timber and each man had a firm hold of the handle of his timber hook, they could easily have held the stick which only as we have seen made a weight of 100 pounds for each, notwithstanding the jarring or slueing of the “ dolly ” by reason of its having been run against the projection. The evidence does riot support the finding that the method .employed to move the tie-in question was not reasonably safe or that the accident resulted because of the employment of such method. The suggestion that the tie could have been more safely moved by four men, two carrying each end, two walk-' ing backwards and the other two following, is the merest speculation. By that method it would have been moved safely if the hooks had all held and none of the men had slipped or fallen; and the same is true of the method which was employed. It was not a Stick of such weight as required four men to handle it. It was a light load for two men. The same may be said of the other method suggested that the tie ought to have been placed across two springers and slid along for a distance of a hundred feet by. means of ropes and without using any hooks at all. If the tie and stringers were slippery, it is. quite evident that such method would be attended by greater danger than the method which was employed ; but it must be borne in mind that as the case was finally submitted to the jury. there was no suggestion or claim that the defendant, is liable because of the existence of the projection, because of failure to furnish proper hooks or appliances, because of the location of the shanty, or because it was not properly constructed and so as to more adequately protect the engineer. .As we have seen, the sole and only question •submitted to the jury was: “Was the defendant negligent in -iiot providing a reasonably safe place to work because of the fad of the method of hamdlvng timbers which was employed on this occasion and which in fad did.result in the falling of the timber and the injury to the plaintiff ? ” The most that can be said from the evidence is that the three’methods for moving timbers like the one in question are well known, were in commoii use and were frequently employed under conditions similar to those which existed here, and that a timber of the character of the one which fell could be moved with perfect safety by either method if the men engaged in moving it were reasonably cautious in the ' performance of their work, and did. not meet with an accident which would cause them to. •release their hold or lose control of,the tie. Under such circumstances an- employer is not required to use the very best method .known, but Only such as is ordinarily employed and is reasonably safe.

Asi before suggested, it is concluded that the finding of the jury that the defendant was negligent because of the employment of the method described, to wit, the use of the “ dolly,” is contrary to and against the weight of the evidence.

Both counsel assert in their respective briefs that the action is brought under the Employers’ Liability Act and it was tried and submitted to the jury upon that theory. It was, therefore, incumbent upon the plaintiff to prove that a notice, which complied with the requirements of section 2 of the act had been served upon the defendant Burns.

A notice, signed and verified by the plaintiff and dated on the 5tli day of March, 1908, the accident having occurred on the twenty-second day of January previous, was served on the defendant Burns. It stated the time and place of the accident and fully complied with the requirements of the statute in that regard. As to the “ cause of the injury ” required by the statute to bé stated, the plaintiff, in the notice served, said: That in the course of my employment I was required to be in and underneath said trestle, in a shanty or shed, provided among other purposes" for the doing of my work and the protection of myself and said engine; that on said day and at said place, about eleven o’clock, A. m., a large, heavy timber, about nine feet long, fell or was thrown or precipitated down through the' roof of - said shed or shanty, where I was employed, and without any notice or warning to me said timber and ^ . the roof materials of which said shanty was constructed struck me in the back above my hips and very grievously bruised and injured me in the manner hereinafter stated.”

Those are the only words contained in the notice served which in any manner relate to the cause.of the injury. It will be observed that such notice does not in any manner inform the defendant of any act or omission on his part which it is claimed constituted negligence and for which he was liable to the plaintiff. For aught that appears the timber may have fallen from the trestle without the fault of the defendant or any of his employees by some agency over which he had no control, and for aught that appears it may have been thrown from the trestle by a third party, one in no manner connected with the defendant. Whether it fell because of defects in the condition of the works, ways or machinery connected with or used in the business of the defendant, or whether it fell by reason of the negligence of a person in his employ intrusted with and exercising acts of superintendence, does not appear. In fact, as will be .observed, the notice does not allege that the timber which injured the plaintiff fell because of the negligence of anybody.

■We think it clear that such a notice does not comply with the provision of the statute which requires that the “ cause of the injury ” must be stated.

In the case of Galino v. Fleischmann Realty & Construction Co. (130 App. Div. 605) the court held: “ The purpose of a notice served under the Employers’ Liability Act is to acquaint the employer with the particular negligent act for which it is proposed to hold him liable and thus enable him to make the necessary inquiries so that he can settle the claim without action, .or, if action be brought, properly present his defense.”

In that case the notice was much more specific than.here. It stated that the injuries'were caused by the defendant’s negligence in that it failed to' furnish me with a reasonably safe place and appliances in arid with which to do the work, and failed to reasonably safeguard, inspect and keep safe the place and appliances with which I was directed to work, and failed to furnish me with proper and reasonably safe ways, works and machinery, and in that you knowingly employed and retained incompetent foremen and co-workmen to guide, direct and assist me in the performance of my work, and failed to formulate, promulgate and enforce proper rules and regulations for my safety and the safety of said co-employees, as a result of all of which I was caused and permitted to fall and material fell upon me, and I sustained the injuries as aforesaid.”

The court in that case unanimously held that the notice Was insufficient for the reason, as is stated: From this notice the defendant' could gain no information as to the particular act of negligence of which the plaintiff complained.”

Iri the casé of Barry v. Derby Desk Co. (121 App. Div. 810) the notice was as follows: Your negligence in failing to furnish me with a safe, proper and suitable place to perform the work which I was engaged to do by you; in failing to furnish me with proper and safe appliances with which to do the work which I1 was engaged to do by you, and in failing to furnish me with competent fellow-employees.” It was held that such notice did not. comply with the requirements of the act for the reason, as stated: “Under such a notice as this no one could possibly determine just what accident or incident caused the plaintiff’s injury, which, as the evidence showed,- was the, breaking of a scaffold plank. What the plaintiff has given notice of is not the cause of his injury, but the cause of that cause. This, as I consider, was not a substantial compliance with the statute.” The head note in part in that case is as follows: “.The purpose of the notice, stating the ‘time, place and cause ’ of an- injury, required by section 2 of the Employers’ Liability Act, is to acquaint the defendant with the particular negligent acts for which it is intended to hold him liable so that he may prepare his defense.” (See, also, Finnigan v. New York Contracting Co., 122 App. Div. 712; 126 id. 947.) It was there held that the requirement that a notice must be served stating the “ cause of the injury ” is intehded “ to put the employer in possession of the particular negligent acts which caused the injury so as to enable him to investigate.” That case was affirmed by the Court of Appeals (194 N. Y. 244), and in the opinion written by Judge Hiscook, the court considers the whole question and very clearly shows how the requirement of the statute should be construed. The conclusions reached in that case are stated very concisely in the head note. It is said: “Notice in stating the cause of the injury should, with reasonable definiteness and completeness, in however informal and inartistic manner, indicate the negligent or wrongful misconduct of the employer really claimed to have been the cause of the accident and really relied on as the basis of the complaint against him, that he may by virtue of such seasonable notice investigate and prepare to defend against the charge thereafter actually to be prosecuted.”

It cannot be claimed, we think, that the notice in the case at bar complied in any sense with the rule thus stated.' As we have said, the notice in this case does not in any manner, inartistically or otherwise, indicate “ the negligent or wrongful misconduct of the employer (Burns) really claimed to have been the cause of the accident and really relied on as the basis of the complaint against him.”

It simply states that a heavy timber, about nine feet long, fell from the- trestle through the roof of the shanty in which plaintiff was employed.

In the Firmigan case, last cited, it is also held: “ An entire failure to give substantial information required by the statute cannot be overlooked on the theory of knowledge acquired, or which might have been acquired, by the employer in some other way.” .

It is concluded that the notice did not comply with the requirements' of section 2 of the Employers’ Liability Act; that it was void, and for that reason the judgment must be reversed, as well, as for the reason that the finding' of the jury that the- defendant .Burns was-guilty of negligence because of the method adopted by him in moving the timber in question, is contrary to and against the weight of the evidence.

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

Spring, Williams and Robson, JJ., voted for reversal only upon the first ground stated in the opinion; Kruse, «L, dissented in a memorandum and voted for affirmance.

Kruse, J.

(dissenting):

The plaintiff in his notice states that the injuries_resulted from the throwing or suffering to be thrown or falling of a heavy timber through the roof of the shed where he was required to work, ■ giving the time and placb and minutely describing the timber which struck him. I think it is. a sufficient statement to comply with the Employers’ Liability Act, especially in view of the undisputed fact that the defendant Was fully informed as to the precise nature of the accident and was not misled.

Rut. even if the notice is not sufficient I think the verdict should be upheld. It appears that the injured person was put at work immediately underneath where these ties were being moved. The ties were put on á so-called, dolly, consisting of a single roller and hauled up an ' inclined pásSageway but sixteen inches wide, being. guided and moved with cantliooks.. There was ice and snow on the roller.and the passageway as well as the ties. I think the evidence shows that it was not merely the slipping of the cantliooks which caused- the accident,, but the slipping of the tie, and very likely if the men had held on, one or more of them would have been precipitated to the ground with the' tie.

It requires no extended argument, it seems to me, to show that •such a practice is dangerous, and the jury could well find that the defendant was not reasonably careful or regardful of the safety of the plaintiff; that it exposed him ■ to unnecessary peril. He was not warned and did not know the danger to which lie was exposed. I think it was not necessary to serve any notice, as the facts alleged in the complaint and the evidence given upon the trial establish actionable negligence against the defendant, without the aid of the statute, and the allegations regarding the notice may be entirely disregarded as surplusage.

I vote for affirmance.

Judgment and order reversed and new trial ordered, with costs to appellant to abide event.  