
    Howard R. English, an Infant, by Milton T. Myers, His Guardian ad Litem, Respondent, v. Milliken Brothers, Incorporated, Appellant.
    Fourth Department,
    May 5, 1909.
    Master and servant —injury by fall of truss—negligence of foreman— who is superintendent —notice.
    A superintendent stands in the place of and represents the employer, and the latter cannot allege that it is free from negligence when the superintendent neglects to replace a defective appliance with one in proper condition from a supply provided hy the employer.
    Plaintiff was injured while in defendant’s employ hy the fall of a steel truss, and in an action for damages the question litigated was whether the hook on the chain used to hoist the truss was defective or whether it was perfect hut carelessly adjusted. There was a supply of chains in proper condition on hand. Plaintiff was one of several men engaged in'raising the truss1, and the man who was directing the work at the time and was at least the foreman of the gang, knew or should have known that the hook was defective, if such were the case.
    The trial court, ruling that the foreman was not a superintendent and that a recovery could not be had for his negligence under the 2d subdivision of section 1 of the Employers’ Liability Act, charged the jury that a Recovery might be had under the 1st subdivision of said section if the jury found the facts with plaintiff, hut added a qualification to the effect that there could be no recovery for the foreman’s negligence even though he was intrusted with the duty of seeing that the chain was in proper condition, if the employer had furnished an adequate supply of chains in a proper condition, and the foreman had neglected on discovery to replace the defective chain with one ' free from defects. Plaintiff duly excepted to the qualification, the court later, upon the jury returning for instructions, made the charge so clear that no one could: mistake it, and the verdict was render ed in defendant’s .favor.
    
      Hein, that the question of whether or not the foreman was a superintendent within the meaning of the Employers’ Liability Act should have been submitted to the jury;
    That, as there was serious doubt as to the correctness of the qualification of the charge under subdivision 1 of said section, and as it could not have been properly charged if the case had been submitted to the jury under subdivision 2 of said section, the case had not been submitted as favorably for plaintiff as it should have been, and an order granting a new trial will be affirmed.
    A notice under the Employers’ Liability Act should state the time, place and cause of the injury, and its object is to enable the employer to investigate the claim intelligently.
    Appeal by the defendant, Milliken Brothers, Incorporated, from an order of the Supreme Court, made at the Ontario Trial'Term and entered in the office of the clerk of the county of Ontario on the 8th day of July, 1908, granting the-plaintiffs motion for a new trial made upon the minutes after a verdict rendered by a jury in favor of the defendant. . --
    1Frank J. O'Neill, for the appellant.
    
      E. A. Griffith, for the respondent.
   Williams, J.:

The order should be affirmed, with costs.

The action was brought to recover damages for personal injuries alleged to. have resulted from defendant’s negligence. The jury rendered a verdict for defendant. The motion was based oh all the grounds specified in section 999 of the Code of Civil Procedure, and was granted without in the order specifying any particular ground.

An opinion was written by the trial justice in which he placed his decision upon an alleged error in his charge, in that he held, as matter of law, that one Fitz Herbert, who - was directing the work at the time of the accident, was not a superintendent, nor exercising acts of superintendency, under the Employers’ Liability Act, and refused to submit those questions to the jury, and that, therefore, the case was not submitted to the jury upon a proper theory. The plaintiff was injured while in defendant’s employ by the falling of a heavy steel truss upon him. Several men were engaged in raising the truss, and Fitz Herbert was at least the foreman of the gang.

First. The plaintiff claims that the accident was the result of a defective hook upon a chain being used, while the defendant claims that the accident resulted from the careless adjustment of a perfect hook, one free from any defect. The jury was instructed to determine which of these two claims was correct, whether the hook was perfect or defective. If it was merely a matter of careless adjustment., there could be no recovery at all. Plaintiff’s right to recover involved a finding that the hook was defective, and that such defect caused the accident, and then the question arose whether the defendant was guilty of negligence in the use. of such defective hook. The defendant was a corporation. It had a superintendent, Dunning, who was not present at the time of the accident. Fits Herbert was there, and was apparently the only person in charge of the work, and giving direction as to how it should be done. The defect alleged was that the hook in its perfect condition had a space of only one and one-half inches between the point and the body of the hook, and at the time of the accident it had been sprung so that the distance between the point and the body of the hook was two inches. This condition was not shown to have existed longer than a half hour before the accident, but during that time it was claimed that this defective condition was the subject of conversation between the men, and that Fitz Herbert knew, or should have known, of its condition before he directed its use when the accident occurred. ■ If this was true, then he was negligent in permitting and directing the use of this chain, and the question is whether his negligence was chargeable to the defendant. It is just this point we are interested in here, the relation between Fitz Herbert and the defendant. There are two subdivisions of section 1 of the Employers’ Liability Act (Laws of 1902, chap. 600). In substance the section provides ■for a right of action by an employee against his employer for the negligence of another employee, the same as though the plaintiff had not himself been an employee under subdivision 1, where the employee guilty of negligence is a person intrusted with the duty of seeing that the ways, works or machinery are in proper condition, and under subdivision 2, where such employee guilty of the negligence is a person ini/rusted with and exercising superintendence, as his sole or principal duty, or acting as such superintendent with the authority or consent of the employer, in the absence. of the principal superintendent.

How the trial court held that Fitz Herbert was not a superin-' tendent, and that a recovery could not be: had for his negligence as such under the 2d subdivision of section 1 above referred to, but he did charge the jury that a recovery might be had under the 1st subdivision if they found the facts with the plaintiff.

In making this charge,, ho we ver, the trial court added a qualification to the effect that there could be no recovery for Fitz Herbert’s negligence, even though he was intrusted with the duty of. seeing that the chain was in a proper condition, if the employer had furnished an adequate supply of chains in a proper condition, and Fitz Herbert had neglected on discovery that the chain being used was defective to replace it with ,a chain free from defect from the supply on hand. This qualification was excepted to by the plaintiff.

I have serious doubt as to the correctness of this qualification charged under the 1st subdivision of section 1, but certainly if the court had submitted the case under the. 2d subdivision, no such qualification could have been properly charged. As superintendent he stood in the place of and represented the employer itself, and the latter could not allege that jt was free from negligence, when from its own abundant supply of chains it neglected to replace a defective one with one in proper condition. (Connolly v. Hall & Grant Construction Co., 192 N. Y. 182.)

The case was not, therefore, submitted to the jury as favorably to the plaintiff under the Employers’ Liability Act as it should' have been if there was evidence making the question of Fitz Herbert’s superintendence one .of fact for the jury instead of one of law for the court. The jury appreciated the effect of this qualification charged by the court, because just before their agreement they came into court and made inquiry as to this precise point. The court thereupon made the qualification so clear that no one could mistake it, and the jury then readily rendered, a verdict for the defendant.

The evidence apparently was quite clear that there was- a supply of chains from which Fitz Herbert might have procured one in .proper condition to replace the defective one in question.

I think' this question of superintendence was at least one of fact, and that the plaintiff was entitled to have the case submitted to the jury upon that theory. (McHugh v. Manhattan R. Co., 179 N. Y. 378; Faith v. N. Y. C. & H. R. R. R. Co., 109 App. Div. 222; affd., 185 N. Y. 556 ; Connolly v. Hall & Grant Construction Co., supra ; Harris v. Baltimore Machine & Elevator Works, 188 N. Y. 141; Guilmartin v. Solvay Process Co., 189 id. 490; Gallagher v. Newman, 190 id. 444.)

Many cases have been decided in the Appellate Division, but they are all based upon some of the cases in the Court of Appeals to which reference is made above.

I do not regard it as necessary to discuss the evidence. It was sufficient to take the case to the jury upon this question.

Second. I think the notice of the plaintiff’s claim under the Employers’ Liability Act, section 2, was sufficient.

The notice is required to state the time, place and cause of the injury. It is claimed the place was not sufficiently stated. It was stated that the place was the village of Seneca Falls, Seneca county, Ff. Y., while in the employ of the. defendant, which was constructing a large iron frame building for the Gould Company. The statute provides that no notice shall be. deemed insufficient or invalid solely by reason of any inaccuracy in stating the time, place or 'cause, if there was no intention to mislead, and the employer' was not in fact misled. It is held that the object of the notice is to enable the employer to investigate the- claim and to do so intelligently. ■' It is apparent in this case; that -no injury was done 'the defendant by any imperfect statement of the place where the injuries were received, and there was no intention, on the part of the plaintiff- to mislead the employer. (See Heffron v. Lackawanna Steel Co., 121 App. Div. 35; affd., 194 N. Y. 598, and Finnigan v. N. Y. Contracting Co., Id. 244.)

Third. So far as the granting of a new trial might have been based upon the finding by the jury of the facts from the evidence, we rely upon the discretion and judgment of the trial court, ordinarily, and do not examine or weigh the evidence.

Our conclusion is that the order appealed from, should be affirmed.

All concurred ; Kruse, J., in result only.

Order affirmed, with costs.  