
    Charles F. Heffron, Appellant, v. Lackawanna Steel Company, Respondent.
    Fourth Department,
    July 9, 1907.
    Blaster and servant — injury by falling through, hole in flooring—contributory negligence — Employers’ Liability Act — when foreman acts as superintendent— sufficiency of notice — objection too late.
    A foreman in a steel mill, having authority over from ten to fifty men and authorized by the master to superintend,' cany on and.direct their work, is exercising superintendence within the meaning of the Employers’ Liability Act.
    When such foreman, overseeing the construction of a steel floor, orders a workman to remove planking from an opening therein and not to replace the plank, through which opening the plaintiff fell, it is an act of superintendence within the Employers’ Liability Act, for which the master is responsible. The master is not absolved from liability because the foreman disobeyed instructions in leaving the hole uncovered, if it were within the scope of his authority to direct the removal of the planks.
    An employee engaged in the construction of said floor who during the night when the place is dimly lighted leaves his work to cross the floor in search of a tool and falls into the opening temporarily uncovered, is not guilty of contributory negligence if he did not know that the opening was uncovered and there was nothing to put'him-upon his guard.
    A notice under the Employers’ Liability Act stating that the plaintiff “ while employed at the steel plant owned and operated by you ” fell through an opening, etc., is defective in failing to indicate the place of injury, when the steel plant consisted of many buildings. But as the statute provides that a notice shall not be deemed insufficient solely by reason of any inaccuracy in stating the time, place, etc., of the injury if it be shown that there was no intention to mislead and the party entitled to notice was not in fact misled, a master having full knowledge of the place of injury cannot object to the insufficiency of the notice.
    When on the .trial of an action brought under the Employers’ Liability Act. the parties disregard the items of negligence set forth in the notice and litigate without objection the question as .to whether a foreman -was performing acts of superintendence and whether he were negligent, the master cannot afterwards object that the negligence established was not set forth in the notice.
    Appeal by the plaintiff, Charles F. Heffron, from an order of the Supreme Court, made at the Erie Trial Term and entered in the office of the clerk of the county of Erie on the 7th day of August, 1905, granting the defendant’s motion to set aside the verdict of a . jury theretofore rendered in favor of the plaintiff.
    The plaintiff was injured by falling through an opening in the floor of defendant’s steel mill, and recovered a verdict of $5,500 at the Trial Term, and a motion was made, to set it aside on all the grounds specified in section 999 of the Code of Civil Procedure. The motion was granted on the exceptions'of the defendant, “and upon the ground that the verdict was contrary to law.”
    In the memorandum filed by the trial judge the specific ground upon which the order was founded was that Lawrence, whose relation to the defendant-is considered in the opinion herewith, was not . a superintendent or acting in that capacity with reference to.the act which constituted the negligence against the defendant.
    
      J. H. Metcalf and Frederick G. Bagley, for the appellant.
    
      Evan Hollister, for the respondent.
   Spring, J.:

The defendant is the owner of a large steel plant in the town, of West Seneca, near the city of Buffalo. In April, 1903, the plaintiff was an- ironworker in its employ, and had been one of its employees since a mere lad. On the fourth of April he was engaged with a helper in drilling holes in angle irons in the tapping, room, of its steel mill, which was a building 240 feet by 60, four stories high, and one of the hi any buildings comprising the extensive plant of the defendant. The work of drilling was done with a hand ratchet' drill, and an iron implement, called án “old man” was used as. a brace for the drill. A block of wood was required to tighten up the brace.

The plaintiff, with his helper, was .wwking nights, with about twenty other men, on the third or tapping floor of this large build-' ing. Extending lengthwise north and south of the entire floor, along its center, were cupolas or “ mixers,” in wdiich the ir.on ore is melted and the .molten metal tapped or run out — lienee, the name “ tapping” room.- The floor on the east side of this central line of cupolas was made up of iron-plates laid lengthwise and each plate was six -feet by twelve, bolted to the iron bed pieces on which it rested. The plates were all in place, except one tier next to the cupolas which had not been fitted. The space designed for these was temporarily covered with planks. The planks where one of these plates, was to be placfed had been removed. :

When the plaintiff went to 1ns work at six o’clock in the evening he obtained his tools and a torch from a locked cupboard to which .a day laborer also had access. Two torches were needed for successful work in drilling these irons as two men worked together. The torch was a pint, tin can filled with oil from which a wiclc projected. There was only one torch in the locker and the plaintiff asked McGuire, his. foreman, for another and was told there were no more and he must get along with the one. The two men worked together until nearly midnight when the block used in tightening the “ old man ” became battered from hammering to keep it in place.

The plaintiff knew there was a block in the southeast corner of the room and started after it. The only light aside -from the torches was an electric arc light at the southwest corner of the room and a small bonfire, used by the men to warm their hands, neither of which aided the plaintiff in his quest for the block. He had gone about forty-five feet when he fell in the uncovered hole, going down twenty-six to twenty-eight feet, fracturing both legs and sustaining other serious injuries.

Muldoon, a witness on behalf of the plaintiff, who was then in defendant’s employ, testified that late in the afternoon of the day the plaintiff was injured he was directed by Lawrence, his foreman, to remove one or two sets of these planks on the tapping floor and to throw down some cast iron separators or braces, which'he did, finishing the work just before quitting time. When he completed the work Lawrence, the foreman, told him he need not cover the hole again and, accordingly, he left it uncovered.

The action is under the Employers’ Liability Act (Laws of 1902, chap. 600); and the respondent contends, and the court below in granting the new trial has held, that Lawrence in giving this direction was not exercising an act of superintendence, but it was a mere detail of the work. The business carried on by the defendant is of grfeat magnitude and several thousand men are in its employ at this plant. Hecessarily there are various departments and several grades in the line of superintendency, and each superintendent or foreman must be vested with authority and the exercise of discretion in the business committed to him. The general manager or superintendent of any particular department cannot be in. personal touch with every branch of the work, intrusted to him. The execution of his general orders depends upon subordinates who direct- the work and manage the men under them. Muldoon testified that Lawrence - was his foreman, having charge of a-number óf men varying from', ten to forty. He further said: “ His duties [were] to look after the . work and see to the men." He directed me as to what work to do and he examined • the work that' I was doing and told me if I was •not doing it right. There was nó one else that I received-directions from as foreman of that work. He was the only person who was over me as foreman,” ■

Lawrence was a witness on behalf of the defendant. ■ He testified that Muldoon was. in the gang immediately- in charge of Wells, a sub-foreman; that Wells' was under the-orders of Lawrence, who -directed-the work and “ had authority over Muldoon;'”' that he ivas. “ the foreman. directly authorized by this company * * * to." carry On that work.” The average number of men under him was ten, but at times his gang would run up to forty or fifty men.: Ho was hot'required to do manual work but his “business-was to super-in tend and direct the other men, * * * and Muldoon was expected and obliged to do anything [I] told him.” : Every superintendent or manager, whatever maybe his rank, or however extensive may be the business, is responsible to some superior authority. The first superintendent is amenable to the board of directors. That body may not elect.to interfere, but' if a -test of authority is made, the superin- ■ tendent is the subordinate of the men who employ .him. In the descending scale of superintendents, supervisor's' or foremen/ of by whatever name they are designated, each one is .responsible to some higher functionary.

Lawrence directed Muldoon to do a specific: independent .act. He was in' sole command in giving, the direction'. The work lie ordered to be done was not a detail, not a minute, incidental part of the work requiring no oversight. He was exercising an act .of superintendence within the.scope of the Employers’ Liability -Act. The direction- was just as much that of one exercising, superintendence as-if he had ordered the men- to lay all the floors in the building,. to construct the cupolas,, or to quayy the stone for the walls. Unless a direction of this kind comes within the function of a superintendent, or is exercising an act of superintendence, the statute referred to is shorn of much of its efficiency.' Many of the acts which formerly were held to be those of a fellow-servant ánd related to a detail of the work have been eliminated from that category and come within the scope of superintendency by virtue of this act. (Bellegarde v. Union B. & P. Co., 90 App. Div. 577; Gmaehle v. Rosenberg, 178 N. Y. 147.)

In Faith v. N. Y. C. & H. R. R. R. Co. (109 App. Div. 222; affd., 185 N. Y. 556) the decedent was an experienced boilermaker. He, with two other men, was repairing an engine front under the direction of a foreman named Morris, who was in charge during the absence of the general superintendent. Morris directed two of the men to detach the front, which they did.- The usual method of doing this was to remove all the bolts with the exception of one at the top, which was left to hold the door, or front, until tackling could be fastened to it. In this instance the men, in the presence of Morris, removed all the bolts. The plaintiff was not present when the work was in progress, but returned with the tackling and took hold of the door, supposing it was still held in place by the one bolt, when it toppled over on him, causing his death. While the act of keeping the single bolt in place required no great skill or intelligence, yet the omission to do so was in the presence of .Monis, and it was held that he was exercising acts of superintendence under this statute, and the defendant was responsible for his lack' of proper oversight. ' -

In McHugh v. Manhattan R. Co. (179 N. Y. 378) the action was under the Employers’ Liability Act. It was the duty of the plaintiff’s intestate to couple the engine to a car on a switch of the defendant. One Coleman was the train dispatcher and in charge of the switch yards. He gave the signal by an electric gong when the train was to start after it had been coupled. In his absence Flanagan, his train clerk, acted in his stead. Flanagan gave the signal when plaintiff’s- intestate was making the coupling. The train was started and he was crushed under the. trucks. It was claimed by the defendant that Flanagan was not performing an act of superintendence, but a mere detail of the work. The Court of Appeals .held otherwise, stating that “anew liability was imposed on the master” by this act. To the same effect are McBride v. N. Y. Tunnel Co. (101 App. Div. 448); Carlson v. United E. & C. Co. (113 id. 371); Braunberg v. Solomon (102 id. 330).

ft is generally unsatisfactory to attempt to reconcile border cases reaching contrary results. Yet we thinlc .the authorities relied upon by the respondent may reasonably be' distinguished from the one-under review and from those already cited: '.

In Guilmartin v. Solvay Process Co. (115 App. Div. 794) the plaintiff, with other men, was engaged in extricating a large belt connecting two shafts, which, had run off the pulley and doubled, around it, pulling tight. ■ A shift foreman was-assisting in the work like any fellow-servant of the plaintiff. He directed- the plaintiff-to-step over the shaft .and throw the. belt off, -and in obeying the direction his leg became entangled in the belt and he was injured., lie "was an old employee, as familiar with the situation, ás. the shift foreman. Four other men, one’of whom-'was the shift foreman, were pulling on the belt, and its separation was the cause of-the accident. The 'court held that the shift foreman .was a fellow-servant, laying stress- upon the fact that he was actually participating in the .effort, to extricate the belt. . • .

So in Quinlan v. Lackawanna Steel Co. (107 App. Div. 176) the foreman gave the order to the plaintiff when to move an electric crane, and the electricity was turned on by him when-plaintiff was oiling the machinery, and he received a shock. The court held under the evidence that the foreman had no such general charge of the particular business in hand as to constitute him a' superintendent' within the meaning of the act; and' further, that a superintendent implies some discretionary. power, and “ such a supervision and charge as gives power, of direction; and-it must be with authority to direct the manner and means of prosecuting tlie work .in. charge.” Lawrence’s authority w,as sufficiently extensive to meet these requirements. The defendant in. the present, case gave no. evidence showing any limitation.- upon • Ins authority. The question was submitted to the jury, and- their 'finding that he was a, superintendent or exercising an act of, superintendence in directing Muldooii to remove the planks and not replace them is sustained by the evidence. Lawrence in a hesitating, uncertain why testified that he did not remember the direction given' to Mul-. doon, but the question of' fact has been settled in favor of the plaintiff.

If Lawrence disregarded his instructions in leaving the hole ' uncovered the defendant is not absolved from liability to the plaintiff for that reason. If he was within the scope of his authority in directing the removal of the planks and in ordering the separators to be thrown through the opening, the defendant is responsible for damages which are the proximate' result of his unskillful conduct in carrying on the work.

,' ’Llor was the'plaintiff guilty of contributory negligence as matter of law. Ho was working in a large room with twenty other mein While the building was to some extent in process of construction, the plaintiff had-a right to assume it was reasonably safe for himself and his'coemployees to perform the work assigned to them.' The floors were, reasonably safe, except for the temporary displacement of the planks, and leaving the hole in the floor is the negligence which caused the injury. He knew nothing of this defective condition and there was nothing to put him on his guard.

The defendant claims the notice-served in pursuance of-the act was inadequate, and we think it was not sufficiently explicit. Section 2 of the act provides that “ no action * * * shall be maintained unless notice of the time, place and cause of t-lie injury is given to the employer.” The service of the notice conforming to the statute is a prerequisite to-the maintenance of the action. (Chisholm v. Manhattan R. Co., 116 App. Div. 320.)

The object of the notice is to enable the employer to investigate the claim, and in order that he may do so intelligently it must be reasonably specific as to “ the time, place and cause of the injury.” The notice served stated “ that on or about the 4tli day of April, 1903, while I was in your employ, at the steel plant owned and operated by you-in the town of West Seneca, I-fell" through an-opening, fracturing both my legs and sustaining other great personal injury.” _ '

The steel plant consisted of many buildings, and a mere designation of “an opening” as the place was - top general to furnish any information and did not fulfill the obligations of the statute.

There are other -considerations, however, which compensate for this defective notice. In the first place, it is very doubtful whether the question of the inadequacy of the notice was raised on the trial. There was considerable conflict in the evidence, over the question of the service of the notice within the tiuie fixed.by the statute. The. notice was offered and received in evidence. The defendant’s •counsel objected to its reception upon the following grounds: “ I object to this proof under the Employers’ Liability Act on the ground that there has not been notice or service of a proper notice upon the defendant.” If he claimed that the notice did not state the place where the accident occurred with sufficient precision he should have raised that objection, especially in view of the saving-clause of the statute to which I will later call attention. The plaintiff might have been able to obviate the objection bad attention been called to the particular defect now urged. Again on the motion for nonsuit the sufficiency of the notice was not challenged. After all the evidence was in counsel for the defendant called attention to another aspect in which the notice .was defective, and to which I will advert later.

■ We will assume, however, that the question was properly raised.. The statute contains this clause, “ but 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 not in fact misled thereby.”

■ ■ There was no direct proof that the defendant was not misled by the insufficient statement of the place where the accident occurred. The evidence itself, however, negatives any such assumption. - There were many of the defendant’s employees in the room when the plaintiff fell through the opening. One of them anyway looked down through the opening- holding his torch. Others went after the plaintiff. Lawrence testified that he saw the hole, both before and after the injury, and the defendant’s counsel had a photograph of this opening on the trial. There never was any controversy over the place where the plaintiff fell, and the defendant could not have been deceived by the failure of the notice to specify thfe exact location. Nor could the plaintiff have intended to -mislead relative to a.fact Avhich was no.t in dispute. •

The notice .in defining the alleged. negligence of the defendant says, that my fall was caused solely by reason of your carelessness and negligence in failing to properly guard and light said opening and to furnish me with sufficient and proper lights and lanterns and through your failure to make and promulgate reasonable rules and regulations for my safety and those of your other employees and through your carelessness and negligence in failing to properly inspect said opening and its surroundings.”.

The court took away from the consideration of the jury the failure to light or inspect said opening, or to promulgate rules, which excluded practically all the allegations of negligence charged in the notice. The case, however, was tried on the assumption that Lawrence was acting as superintendent in leaving the opening uncovered, and whether he was negligent in this regard was the question submitted to the ‘jury. The.parties on the trial disregarded the charges of negligence set forth in the notice, and no question was raised on this subject until the close of the evidence. The counsel for the defendant asked for the direction of a verdict, and referred to the notice, adding “and which has no reference whatsoever to the alleged negligence which the plaintiff now stands upon, and, therefore, that the plaintiff is estopped, imder the authority of Rochevot v. Wolf, decided in the Appellate Division, from taking any other and different position than the position we find in "this notice.” This was too late to raise the question after the trial, without objection, had progressed to. a conclusion upon an entirely different line; and, beyond that, the criticism was too indefinite. The defects in this notice did not mislead the defendant, and for that reason they did not nullify it.'

On each of the issues involved there ivas a fair question of fact, and with ample evidence to sustain the verdict.- The order granting a new. trial ivas not on the ground that the verdict was contrary to the evidence, and it should not be upheld on that ground.

The order should be ' reversed, with costs of this appeal, and the. motion for a new trial denied.

All concurred.

Order reversed, with costs. 
      
      96 App. Div. 506. —[Rep.
     