
    Michael Sienbida, Respondent, v. Tonawanda Board and Paper Company, Appellant.
    Fourth Department,
    July 9, 1907.
    Negligence — injury by falling, coal — Employers’ Liability Act — superintendent.
    Under the Employers’ Liability Act a master is chargeable with the neglect of his superintendent in failing to remove a frozen crust oyerhanging.a coál pile, of the dangerous condition of which the superintendent wds notified, and which . he promised to attend to.
    Under the statute the master, although not primarily negligent himself, is liable for the negligence of his superintendent.
    McLennan, P. J., and Bobson, J., dissented.
    Appeal by the defendant, the Tonawanda Board and . Paper Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office, of the clerk of the county of Erie on the 14tli day of March, 1907, upon the verdict of a jury for $800, and also from an order entered in said clerk’suffice on the 2.1st ffp,y of February, 1907, denying the defendant’s motion for a new trial made, upon the minutes.
    
      Clinton B. Gibbs, for the appellant.
    
      Elbert S. Boughton, for the respondent.
   Williams, J.:

The judgment and order should he affirmed, with costs.

The. action was to recover damages for personal injuries alleged to have resulted from defendant’s negligence. The plaintiff was engaged in wheeling coal from, a coal pile in defendant’s yard to the boiler house, and was under the general superintendence and direction of one Hassett. The coal ivas being- taken from a pile some eight or ten feet high. It had frouen so that a.crust had been formed on top, and as the coal was taken from the bottom of the pile there was left an overhanging crust eight to twelve inches thick, and as the removal of the coal below continued the crust was so undermined and became so weakened that it finally fell upon plaintiff and crushed his leg.

The action was tried as one under; the Employers’ Liability Act, and the questions of defendant’s negligence, plaintiff’s contributory negligencé and of assumed risk were submitted to the jury as questions of fact. A verdict for plaintiff' of $800 was rendered.

The notice under the Employers’ Liability Act was sufficient, in' view of the provision of the statute that no notice under the provisions of this section shall be deemed to be invalid or insufficient solely by reason of any inaccuracy in stating the time, place or cause of the injury, if it be shown that there was no intention to mislead, and that the- party entitled to notice was hot in fact misled thereby.” (Laws of 1902, chap. 600, § 2.)

There was evidence sufficient to authorize the jury to find the plaintiff free, from contributory' negligence, and that there was no assumption of-risk by him. ' These questions are made expressly by the statute questions for. the jury to determine. There was evidence spfficient to warrant the finding by the' jury of negligence on the part of the defendant under the Employers’ Liability Act. Hassett was a superintendent. He was notified several days before the accident that the overhanging crust was dangerous and that it ought to be removed. He promised to look after it, but failed' to do so. Under the common law this may have been a detail of the work for which this employer, having furnished a competent superintendent to-supervise the work, would not have been liable under ■such -cases as Russell v. Lehigh Valley R. R. Co. (188 N. Y. 344), but under the Employers’ Liability Act, the duty to remove the crust was upon the superintendent, if not the defendant, and the defendant would be liable for the superintendent’s neglect of duty, if it was his alone, and not the negligence of the defendant primarily. (Laws of 1902, chap. 600, § 1.)

All concurred, except McLennan, P. J., and Robson, J., who dissented.

Judgment and order affirmed, with costs.  