
    Rosanna Palin, as Administratrix, etc., of Adelard Palin, Deceased, Appellant, v. Cary Brick Company, Respondent.
    Third Department,
    June 24, 1909.
    Master and servant — negligence — death by fall of clay bank — facts raising questions for jury.
    A notice under the Employers’ Liability Act, stating in substance that the plaintiff’s intestate was killed at a certain date while in the defendant’s employ in a brickyard by a landslide caused by the defendant’s neglect to furnish a safe and reasonable place in which to work in digging and removing clay, and that the defendant negligently omitted an inspection and proper rules governing the operation of the clay bank, and omitted properly to support it, and.suffered it to be in a dangerous condition without warning the intestate, and that the death was caused by the defendant’s aforesaid negligence and that of its superintendent- in -directing him to work at the bank while it was in a weak, dangerous and hazardous condition without warning and instructing him of its dangers, sufficiently complies with the statute.
    The plaintiff's intestate, employed in a brickyard, was killed by the .fall of a clay bank while engaged in undermining, as directed by the defendant’s superintendent, although the superintendent had been told by the defendant not to undermine. On all the evidence, held, that the defendant’s negligence; the contributory negligence of the intestate and the authority of the superintendent to direct the bank to be undermined were for the jury, and a nonsuit was "error.
    Appeal by the plaintiff, Rosanna Palin, as administratrix,' etc., from adjudgment of the Supreme Court in favor of the defendant, entered in the "office of the clerk of the county of Albany on the 12th day of January, 1909, upon the dismissal of the complaint by direction of the court at the close of the plaintiff’s case-on a trial at. the Albany Trial Term"
    ■ John Scanlon, for the appellant.
    
      Andrew J. Nellis for the respondent.
   Kellogg, J.:

Plaintiff’s intestate, her husband, was killed by the fall of a clay bank upon him while in the defendant’s employ at its brick yard. Her notice under the Employers’ Liability Act (Laws of 1902, chap. 600) stated, in substance, that her husband was killed on the date stated while in defendant’s employ at its brick yard in Cohoes by a landslide which fell upon him, caused by neglecf to "furnish him a reasonably safe place in which to work in digging and removing clay, and that the company negligently omitted an inspection and proper rules governing the operation of the clay bank, and omitted to properly support it, and suffered it to be in a dangerous condition without warning the intestate; that the death was caused by the defendant’s aforesaid negligence and by the negligence of its superintendents in directing him to work at the clay bank while it was in a weak, dangerous and hazardous condition, without warning and instructing him of its dangers. The defendant contends this notice was insufficient within Finnigan v. N. Y. Contracting Co. (194 N. Y. 247). The defendant’s bank boss and others were present at the time of the accident and it had full knowledge thereof at the time. I think that the plaintiff, the wife of an Italian laborer, a person unable to speak the language, and who was sworn through an interpreter, has fairly well succeeded in giving intelligent and sufficient notice of the cause of the death of her husband. She might well describe it as a landslide caused by negligently omitting to properly support the.clay bank arising from improper inspection, and from its weak, dangerous and hazardous condition. The action is, therefore, properly brought under the Employers’ Liability Act.

The business, properly conducted, was attended with some risks; but if the risks were only such as necessarily attended the business, we cannot say that there was a defect in the defendant’s works or ways.

But the business was not properly conducted. The system of doing the work was known to be unnecessarily dangerous to all employed therein, and the jury might have found there was a defect in the defendant’s works and ways. The defendant’s general manager and superintendent, Abbott, swears that he told the bank boss not to undermine; “ that it would be apt to fall down and kill somebody.” Nevertheless the bank boss swears the system of undermining was always in force in the yard; the superintendent was in the yard nearly every day and noticed the kind of clay obtained and what men were at work, and he either saw the undermining or purposely shut his eyes to avoid the sight. The jury had the right to say that the defendant put its men at work in a place where their lives were continually endangered by the reckless manner in which the defendant did its business, and that the defendant made its works and ways defective - and dangerous by causing its employees to undermine the bank at the immediate place where they were at work. The evidence tends to show that the fall of the clay bank which killed the intestate was caused by the undermining of the bank, which was going on at the time.

The evidence tends to show that Pellerm, the bank boss, with the knowledge of the company and his superior officers, was conducting this particular work in a l^nown dangerous manner, in direct opposition to their directions. Nevertheless his methods obtained and the company received the benefits of his alleged disobedience to their instructions in getting down more'clay and obtaining better results from the work of the men. The general manager swore that Pellerin “ had charge of getting down the .clay. * * * In relation to getting clay out, he represented us.” There was no inspection of the banks by any superioreverything at the banks was apparently left, to his directions. These facts, and the fact that he managed this business with the knowledge of the defendant and its officers in opposition to their instructions, make a fair question for the jury to determine whether he was not a superintendent or a person exercising superintendence within the meaning of the statute.

Taking the view of the evidence most favorable to the plaintiff, it was a fair question for the jury whether the death was not caused by the negligence of tlié defendant’s superintendaut or by the defect ive condition of the defendant’s works and ways. Under the Employers’ Liability Act the question of the contributory negligence of the intestate was clearly one for the jury. The judgment should, therefore, be reversed and a new trial granted, with costs to appellant to abide the event.

All concurred; Smith, P. J., and Cochrane, -J., in -result.

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