
    Henry Miller, Respondent, v. The Solvay Process Company, Appellant.
    Fourth Department,
    November, 1905.
    Negligence of fellow-servant—Employers’ Liability Act — sufficiency of notice.
    A notice under the Employers’ Liability Act of an injury received by the plaintiff while unloading coal through trapdoors in the bottom of a coal car, caused by his slipping down with the coal and striking the shaft, is insufficient, when it fails to state the specific place of the injury, how it happened, wherein or in what manner the defendant’s agents, servants or employees were negligent, and when no particular act of incompetence is charged.
    And where the negligence charged is not that of any person in the service of the defendant exercising superintendence, but that of a coemployee unwinding the chain which lowered said doors, a nonsuit should be granted.
    Appeal by the defendant, The Solvay Process Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Onondag'a on the 20th day of May, 1905, upon the verdict of a jury for $550, and also from an Order entered in said clerk’s office on the 19th day of May, 1905, denying the defendant’s motion for a new trial made upon the minutes. . .
    
      Louis L. Waters, for the appellant,
    
      John H. McCrahon, for the respondent.
   Nash, J.:

The action is for personal injuries. The plaintiff at the time his injuries were received Was one of a gang of men in the employ of the defendant unloading cars of coal, shoveling the coal from open cars down into pockets underneath.. In the center were two doors, which form part of the bottom of the car and when open permit the coal to run out through the opening, about five feet in length by four in width. The doors are fastened when closed by chains wound around a shaft and opened by unwinding the chains. As stated by a witness, to open those doors we unwind the dog; there is a dog on the outside — what we call a dog ; a catch that snaps on a little wheel. We unsnap that catch and unwind the car.” The car on which the accident occurred was a twenty-five ton car of rice coal, smaller than buckwheat, and the coal about .six feet in depth over the doors. Five or six cars had been unloaded when the men came to this one. The coal was frozen in the cars that had been unloaded and the men that went in the car on top of the coal to shovel had bars and hammers to drive down through the coal to open the door when fast. The: car in question was not. frozen Unless perhaps near the bottom of the car. Five of the gang came to this car, Flint,, the foreman-, and four others. Miller and two. others went on top of the coal in the car. St." John, one of the men, w'as on one side of the car unwinding the dog. Flint, with a bar, on the other side lifted on the doors. They opened, and the men on the car, including the plaintiff, fell, slipping down into the coal. The plaintiff was injured by falling on the shaft in the bottom of the car.

The action is brought under the Employers’ Liability Act (Laws of 1902, chap. 600). The act provides (§ 2) that no recovery for injuries under this act shall be maintained, unless notice of the time, place and cause of the injury shall be given to the employer. The following is the notice served: _

“ Take notice that the undersigned, Henry Miller, was injured on or about the Wth day of January, 1904, in the. yard of the Solvay Process Company at Solvay, N. Y., at the time being an employee Of the said Solvay Process Company.
. “ This claimant -was injured by reason of the negligence and carelessness of the defendant, its agents, servants and employees, through ..their in competency in' not providing competent servants in the work of unloáding its coal from cars, and in not stationing guards or persons to Warn claimants of danger and in failing to properly protect -its employees while engaged in- the performance of their various duties.
“Notice is given that this claim, unless this matter is adjusted, will bring an action against the Solvay Process Company to recover damages for injury .under chapter 6Ó0 of the Laws of 1902 and the several’ acts amending the same, and this notice is served upon you in accordance therewith.
“ Dated March 14th, 1904.
“ HENRY MILLER, Claimant.”

The notice is defective in several particulars. The place mentioned in the notice is the yard of the defendant. There are four or five different places in the yard where cars of coal are unloaded, •and the plaintiff was one of a gang of twenty or thirty men engaged in unloading. The notice does not state how or in what manner the plaintiff received his injury, nor wherein or in what manner the defendant’s agents, servants or employees were negligent or careless in not providing competent servants in the work of unloading coal, and in not stationing guards or persons to warn claimants of danger,'and in protecting its employees while engaged in the performance of their various duties. There is no particular act of incompetency mentioned. The notice is too general and insufficient to furnish any substantial assistance to the defendant in, the investigation of the claim either as to the place or cause of the accident, and, therefore, does not meet the requirements of the statute in this behalf.

There was no evidence whatever given upon the trial of any incompetency of defendant’s agents in providing servants to do the work of unloading coal from the cars. ¡Nor was there any evidence given upon the subject of stationing guards dr persons to warn claimants or employees of danger, or upon the subject of protecting them while engaged in the performance of their various duties. In respect of its applicability to the injury actually sustained the notice is wholly defective.

The evidence does not bring the case within the provisions of the act in other respects required to create liability. The plaintiff was not injured by reason of the negligence of. any person in the service of the defendant intrusted with or exercising superintendence. Flint, by whose negligence the injury is said to have ■occurred, was a mere foreman,, and a coemployee with the plaintiff. Furthermore, no' negligence whatever on the part of Flint was shown. He was called as a witness by the plaintiff, and the only one who gave testimony on the subject of his duties as foreman, and of his act for which negligence is claimed. He says': I had four men in my charge * * * unloading coal and shoveling out the cars. * * * My duties are to run the coal in there, to see that they have got coal enough for the caustic each day and' night, and check off the cars that come there on the ticket, and to see that my men work; see .that they do what they ought to -do. There are other departments in the Solvay Process Company where coal is loaded and unloaded. Mr. Lewis was at that time the man over me. * * * I saw the accident. Mr. Miller was up on. the car at that time.' I was on the ground checking off the cars and helping open the car. I came down and checked off the cars and'Saw that the cars were on the cards; and I always help open them , when I am down there when it is necessary. * * * 1 took the bar and put it under the car to help lift ón it and open it.” He also says: St. John was on' the Other side of the car unwinding 'the dog. “ The chain was unwound and after it was unwound I took, this spud or bar and lifted on the door. The car wasn’t froze, because it came in fresh. Q. When you- lifted on the doors they opened? A.. Tes, sir. Q.- Tell the jury wh.at happened. A. They opened and •the men that were around there fell, slipped down through with the soft coal; the men that were .on the car on top of tlie coal.-- •*'. * * I saw nothing done any different with that car than there was' with any other car. When the cars were frozen we put the bar in to drive them open; if they wont open we put in a bar and drive, them open with a sledge hammer. Put the bar down through the coal from the top, right down through the center of the doors and •the men on top of the cars, drive those bars.” , ' ...

Miller says: “ I went up in the car; after I got up there w.e put that bar in aiid then 1 and another fellow was hammering away and all at- onóe the whole thing went and' I went over head —I went head first on the bar, across on my chest.” " '

Ho one, not even the plaintiff, in his testimony characterized the act of Flint as negligent. The plaintiff attributed, the caüsé of tlie accident to the act of St. John, in the.manner in which,- on this occasion, he unwound the chain. If ,thé injury to the plaintiff was caused by the negligent .act off any eniployee of the defendant, it was that of St. John, a coemployee.

Our conclusion is that, both upon ■ the ground- of the defective notice and that the act of negligence claimed. was not that of a person in' the service of the defendant intrusted with and.exercising superintendence within the meaning of the statute, the • plaintiff, should have been nonsuited. ■ ■ .

The judgment and order should be reversed , and a new ■ trial ordered, with costs to the appellant to. abide the event, upon questions of law only, the facts having been examined and no error found therein.

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

Judgment and order reversed and new trial ordered, with costs to the appellant to abide event, upon questions of law only, the facts having been examined and no error found therein. 
      
      
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