
    William Flanagan, Appellant, v. F. W. Carlin Construction Company, Respondent.
    Second Department,
    October 12, 1909.
    Master and servant—negligence —Employers’ Liability Act — defective notice — Labor Law applies to repair of elevated railroad — failure to protect workmen beneath, structure — facts raising question for jury — safe place to work — act of fellow-servant—violation of Labor Law as negligence in common-law action.
    Where a servant seeks to hold his master for negligence under the Employers’ Liability Act in that a particular place where he was working was unsafe, the notice must specifically state the place of the injury and point out the negligence which caused the injury.
    Thus, where the master was engaged in lowering the tracks of an elevated railroad near a certain terminal, and its employees were at work on the entire structure, a notice under the Employers’ Liability Act is not sufficiently specific which merely states that the place was “at of in the vicinity of the Manhattan Terminal of the Williamsburgh Bridge,” and that the cause was “ through being struck by a block of wood through your negligence and that of your superintendents and agents, and the negligent and defective condition of the ways, works and machinery used in said work.”
    The Employers’ Liability Act applies where a master is engaged in lowering the tracks of an elevated railroad and it is not necessary to plead the act in order to make it available.
    Even though a notice be insufficient to bring the case within the Employers’ Liability Act, there can be a recovery if the complaint states an action at common law.
    Where a complaint is dismissed at the close of the plaintiff’s case he is entitled on appeal to the most favorable inference reasonably deducible from the testimony which must be assumed to be true.
    Where the plaintiff, while getting material from a storage yard maintained by the defendant under an elevated railroad structure, was injured by a block of wood which fell from above, and there is evidence that it was the general practice in the city of New York to protect men working beneath such structures undergoing repairs by a canvas or temporary staging, it is error to nonsuit. The defendant’s negligence, the contributory negligence of the plaintiff and his assumption of risk are for the jury.
    A master is chargeable with notice that he is using a dangerous method of altering such structure when he violates the provisions of the Labor Law.
    Even if the negligence of the plaintiff’s fellow-servant caused the block of wood to fall, the master was not relieved of his duty to provide a safe place to work.
    Evidence upon which a jury would be justified in finding that a master violated the Labor Law in not -furnishing safe appliances so constructed, placed and operated as to protect the lives and limbs of his servants raises a question of negligence, even if the action be laid at common law.
    A master is required to furnish a safe place to work, not merely a place reasonably safe in its natural condition, and cannot escape liability upon the ground that the place only became dangerous as the work progressed, if the danger could have been foreseen and avoided by reasonable care.
    Evidence examined, and held, that a contention that the injury was caused by the passage of pedestrians and vehicles over the elevated structure was untenable.
    Appeal by the plaintiff, William Flanagan, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Queens on the 28tli day of December, 1908, upon the dismissal of the complaint by direction of the court at the close of the plaintiff’s case upon a trial at the Queens County Trial Term in an action to recover damages for personal injuries alleged to have been sustained by the plaintiff while in the defendant’s employ.
    
      Don R. Almy [William E. Weaver and John M. Wellbrock with him on the brief], for the appellant.
    
      F. Sidney Williams [Edward M. Grout and Paul Grout with him on the brief], for the respondent.
   Rich, J.:

The notice offered in evidence under the Employers’ Liability Act was properly excluded, for the reason that it fails to state the specific place where plaintiff was injured and the negligence of the defendant from which the injury arose. The defendant at the time of the injury was engaged in lowering the tracks of the elevated and trolley roads at the Manhattan terminal of the Williamsburgh bridge, and its employees were at work on the entire structure. The injury occurred through the unexplained fall of a block of wood from the upper part of the bridge under which plaintiff was at work. The notice states the place as “ at or in the vicinity of the Manhattan Terminal of the Williamsburgh Bridge,” and the cause “ through being struck by a block of wood through your negligence and that of your superintendents and agents and the negligent and defective condition of the ways, works and machinery used in said work.” As the action was to recover on the theory that the particular place where plaintiff was working and injured was unsafe, the defendant was entitled to be apprised of the specific location of that place and to have the negligence from which the injury resulted pointed out. The notice failed to give such information, and the plaintiff could not avail himself upon the trial of the benefits of the Employers’ Liability Act. (Miller v. Solvay Process Co., 109 App. Div. 135; Ortolano v. Degnon Contracting Co., 120 id. 59; Kennedy v. N. Y. Telephone Co., 125 id. 846; Finnigan v. N. Y. Contracting Co., 194 N. Y. 244.) The complaint, however — eliminating its averments as to the service of such notice — sets forth a common-law cause of action as well as one for a violation of the provisions of the Labor Law (Laws of 1897, chap. 415, § 18) requiring the use of safe, suitable and proper mechanical' contrivances, “ so constructed, placed and operated as to give proper protection to the life and limb of a person ” employed or engaged in performing labor in the repairing or altering of a “structure.” That statute applies to the class of work the defendant was engaged in doing (Flannigan v. Ryan, 89 App. Div. 624; Wingert v. Krakauer, 76 id. 34), and operates to plaintiff’s benefit (Caddy v. Interborough Rapid Transit Co., 125 id. 681); and it is not necessary to plead the statute specially to have it apply. (Haggblad v. Brooklyn Heights R. R. Co., 117 App. Div. 838; Riley v. McNulty, 115 id. 650.)

The plaintiff was an ironworker, and working as a riveter on the Manhattan terminal of the Williamsburgh bridge, which at that point is forty-five ór fifty feet from the ground, the space under it being open. The terminal extended east and west, and several north and south streets passed under it, between two of which — Pitt and Willet streets — the accident occurred. The defendant was doing the entire work of lowering the tracks crossing the bridge and connecting them with the subway. The bridge had five traffic zones. On the extreme south was a roadway for teams, next to that two trolley tracks of the Brooklyn Heights Railroad Company; next, two tracks for elevated trains; next, two tracks over which the cars of the Metropolitan Company were operated, and next — on the extreme north side—-was another roadway for teams. The work which defendant was doing at the time of the accident was in the second and third of these zones, and consisted of lowering the tracks of the elevated and Brooklyn Heights trolley roads. The open space below these four tracks, between Pitt and Willet streets, was used by defendant as a storeyard for the material used in its work, as well as a working place for some of its workmen engaged in preparing materials for use. Witnesses testified thatall kinds of material, old iron, new iron, etc., * * * rivets and bolts, anything that we needed for the structure, were laid in there.” The work had been commenced at the anchorage and continued westwardly towards the subway. At the time of the accident the gang of riveters, of which plaintiff was a member, had finished their work over this storage yard, and moved their staging and appliances some distance west of it, after which plaintiff went to the storage yard for rivets, and while there was struck on the head by a block of wood which fell from the upper structure, directly over the place where the materials were kept, and where some, of defendant’s employees were working on the tracks of the elevated road in the third traffic zone of the bridge. Loose pieces of wood of all descriptions, bolts, plates, angles, spikes and similar materials, were lying on the bridge where these men were working. There was no cover or protection of any kind between the place where they were working and the storage yard under it, where plaintiff was at the time of the accident, to protect employees who worked in the yard or were sent there for materials, from injury by objects falling from the upper part of the structure, and it appeared that prior to the accident men working in the yard had seen materials fall from the upper part of the structure. An engineer with twenty-nine years’ experience testified that there was a common and general custom or practice in the city of blew Torle, where men were at work beneath other men, whose work was carried on on a bridge or elevated structure to protect the lower workmen by either stretching a canvas, or building a temporary staging, planked over. He says the usual custom in cases of bridges or subway work was to put up a canvas that would protect the men working underneath,- by forming a covering, so that anything falling from above would fall into or upon the canvas, and that this was the common custom and practice when the structure was over private property, as well as when it was over public streets ; that he never saw the kind of work which defendant was doing done when canvas was not so used. The defendant had observed this custom when its work was over public streets.

The plaintiff is'entitled to the most favorable inferences reasonably deducible from the testimony, and his complaint having been dismissed on the evidence produced by him, the testimony given by his witnesses must be assumed to be true. The jury might have found that the defendant established the storeyard„for the purpose of keeping material to be used on the work in the ground space directly beneath the tracks of the elevated road on which it had other employees at work; that upon the upper structure, at the place where such men were working, was loose material, including blocks of wood similar to the one which fell and struck the plaintiff ; that prior to the accident workmen had seen objects fall from the upper structure into the storage yard; that defendant was aware that the work being done on the bridge created danger from falling articles, and that plaintiff, in going to the storage yard for rivets to use in his work, was using the yard in the manner in which defendant intended it should be used by its workmen. In other words, the jury would have been warranted in finding from this evidence that the storage yard was made a dangerous and unsafe place in which to work because of the manner in which the defendant was conducting the work on the bridge over it, and that it knew or should have known this fact. If it was necessary for the plaintiff to establish notice of the dangerous method it was using in the work of altering this structure, I think it was established, in view of the violation of the provisions of the Labor Law. (Johnson v. Onondaga Paper Co., 112 App. Div. 667.) The evidence that there were usual and customary methods in use in New York city for protecting the lower workmen upon bridges and elevated structures from injury by materials falling from higher places where other employees were at work, brings the case within the rule that the failure of an employer to use ordinary and customary methods is of itself some evidence of negligence, requiring the submission of the question to the jury (Schmit v. Gillen, 41 App. Div. 302; Cosselmon v. Dunfee, 59 id. 467); and where the master’s failure to use common and ordinary methods and appliances in his work subjects the servant to unnecessary danger, there is culpable negligence. (Rickhoff v. Heckman, 27 N. Y. St. Repr. 80.) Even if, as suggested, the negligence of a fellow-servant might have put the block of wood in motion, causing it to fall, this would not relieve

the defendant of its own dereliction of duty in failing to provide a safe place for its servants to work in. (Hazzard v. State of New York, 108 App. Div. 119.)

The evidence from which the jury would have been justified in finding that the defendant violated the Labor Law in not furnishing safe, suitable and proper contrivances, so constructed, placed and operated as to give proper protection to the lives and limbs of its servants, also presented a question of defendant’s negligence, requiring its submission to the jury. (McLaughlin v. Eidlitz, 50 App. Div. 518; Swenson v. Wilson & Baillie Mfg. Co., 102 id. 477; Rooney v. Brogan Construction Co., 107 id. 258; Marino v. Lehmaier, 173 N. Y. 530.)

The defendant’s contention that its duty was, not to furnish a safe place for its workmen, but to furnish a place reasonably safe in its natural condition, and such place beedining dangerous only as the work progressed, the defendant is not liable, is without merit. The rule applicable in this case is well stated in McGovern v. Central Vermont R. R. Co. (123 N. Y. 280), as follows: “ When directing the performance of work by the servant in a place which may become dangerous, and such danger may be foreseen and guarded against by the exercise of reasonable care and prudence on the part of the master, it is his duty to exercise such care and adopt such precautions as will protect the servant from avoidable danger. This is the master’s duty and however he may choose to exercise it, whether through the supervision of a superintendent or some lower grade of employment, it still continues his duty, and not until he shows that it has been properly performed, can he claim exemption from liability for injuries occasioned by its nonperformance.” (See, also, Scandell v. Columbia Construction Co., 50 App. Div. 512.)

The contention that in addition to foot passengers, automobiles, trains, pedestrians, vehicles and trolley cars passed continuously over plaintiff’s head while at work, and the spot where he stood when injured, is not supported by the evidence, which is that the elevated tracks had never been used, were just being laid; that no cars were being operated over them follows as a matter of course. That plaintiff was in the space under these tracks, and the only work that was going on over the place where he was injured was the laying of the ties and rails of that road, which was being done entirely by men in the employ of the defendant, leaves no warranted ground for the assumption that cars, pedestrians, automobiles and other vehicles were using the elevated railway on the bridge from which the block fell, for traveling purposes, or that travel upon the extreme outer traffic zones of the bridge was the cause of the block of wood falling from the elevated road into the storage yard. The case is not, therefore, as contended, like those in which a recovery has been denied because of large numbers of workmen of different contractors being at work on the building at the time the object producing the injury fell therefrom, and it was not shown which contractor’s employees were guilty of the negligence causing the accident, and the cases cited have no application. In the case at bar the answer admits the allegation of the complaint that the defendant was contractor for and engaged in performing the structural Work at the Manhattan terminal of the Williamsburgh bridge in the borough of Manhattan, city of Hew York, and the evidence shows that no work was being done on the bridge terminal over the place where plaintiff was injured, at the time , of the accident, except by defendant’s servants, and there was no travel of any kind over or upon that portion of the bridge from which the block of wood that injured plaintiff fell. In this connection see Zettel v. Taylor (128 App. Div. 251).

It was error upon the part of the learned trial justice to take the case from the jury; the questions as to defendant’s negligence, the contributory negligence of plaintiff, and of his assumption of the risk of the employment, were for them to decide.

The judgment should be reversed and a new trial granted, costs to abide the event.

Hibschbeeg, P. J., Jenks and Bube, JJ., concurred; Millee, J., concurred in result.

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