
    George E. Severson, an Infant, by Nelson E. Severson, His Guardian ad Litem, Respondent, v. Hill-Warner-Fitch Company, Appellant.
    Third Department,
    November 20, 1906.
    Master and servant — when complaint sufficient under Employers’ Liability Act and Labor Law — erroneous refusal to charge — promulgation of rules. •
    A complaint in an action brought by a servant against his employer to recover : for personal injuries which alleges “ that on or about the 25th day of Juñe, 1904, plaintiff gave and served this defendant with a notice in writing signed by him of the time, place and cause of the injuries for which this action is brought; ’’ “ that it was the duty of the defendant under the laws and statutes of the State of New York * * * to furnish * * * proper and adequate tools and machinery properly guarded to avoid accidents;” that the. defendant omitted to furnish “ machinery properly guarded,” and “ that solely by reason of defendant’s negligence in not complying with its duties as.aforesáid and in not complying wilh the statutes as aforesaid” the plaintiff was injured, states a cause of action under the Employers’ Liability Act and section 81 of the Labor Law, although those statutes are not specifically pleaded.
    Where the employee’s hand was caught in the machine which.he was operating and there is no evidence in any way attributing negligence to his employer, except in respect to the guard of the machine, it is error for the court to refuse to charge the jury to that effect. •
    It is error to charge over exception that i't was the duty of the employer to promulgate rules for the operation of its machinery where there is no evidence to show what rule could have been adopted which would have protected the plaintiff and when no instruction is given on that point.
    Appeal by the defendant, the Hill-Warner-Fitch Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Broome on the 29th day of January, 1906, upon the verdict of a jury for $1,500, and also from an order entered in said clerk’s'office on the 29th day of January, 1906, denying the defendant’s motion for a new trial made .upon the minutes.. •
    The plaintiff was injured while operating a sizing machine in defendant’s candy factory, through which machine candy is run for the purpose of reducing it to the required thickness for cutting into forms. The machine consists of two rollers, about eighteen inches m length and between four and five inches in diameter, which were slightly corrugated and which were operated in either direction by means of pulleys, belts and an electric motor. The machine is about waist high, and is operated by the operator standing facing the side of the machine with his right side toward it. The plaintiff described it as something like a clothes wringer with a kitchen table at each side of it. Plaintiff said that while operating it he took * hold of the candy with his left hand farthest from the rollers and his right hand on top of the candy, “ and this cancly had either hardened or stuck to the table, and when I shoved, my right hand slipped off the candy and caught * * * in the roller,” and that the injuries for which he sued were thus received.
    
      A. D. Wales and Rollin W. Meeker, for the appellant.
    
      Charles R. Stewart and Frank Stewart, for the respondent.
   Chester, J.:

It is claimed by the plaintiff that the action is brought under the. Employers’ Liability Act (Laws of 1902, chap. 600) and section 81 of the Labor Law (Laws of 1891, chap. 415, as amd. by Laws of 1899, chap. 192, and Laws of 1904, chap. 291), and the case was submitted to the jury by the court as having been brought under those acts. It is claimed by the appellant that the complaint was not sufficient for that purpose, as the only reference in the complaint to any facts which might be construed to have reference to the Labor Law or the Employers’ ■ Liability Act is the allegation “ that on or about the 25th day of June, 1904, plaintiff gave and served this defendant with a notice in writing signed by him of the time, place and cause of the injuries for which ¡this action is brought,” and makes no reference in the complaint whatever to the statutes themselves.

The only condition precedent for the bringing of the action under the Employers’ Liability Act within one year after the accident, as was the case here, is the service upon the defendant of a notice in 'writing within 120 days of the time, place and cause of the injury and signed by the person injured, or by some one in his behalf. It has been held in the second department (Monigan v. Erie R. R. Co., 99 App. Div. 603) that the allegations in support of a ;cause of action under the common law and under the Employers’ Liability Act are the same, except that tinder the act there must be an allegation with respect to the service of the notice provided for therein; Btit this complaint goes farther than that. In the 5th paragraph it is alleged “ that it was 'the duty ’ of the. defendant under the laws and statutes of • the State of New York * - * to furnish . * *. proper and adequate tools and machinery, properly guarded to avoid accidents.” In the 6th paragraph it is alleged that the defendant omitted to furnish “ machinery properly guarded.” In the 11th paragraph it is alleged that solely by reason of defendant’s negligence in not complying with its duties as aforesaid, and in not complying with the * *. * statutes as -aforesaid,” the plaintiff was injured. Section 81 of the Labor Law (as amd. supra) requires that all machinery “shall be properly guarded.” Wé think, therefore, it was- a ■ fair construction' of the complaint on the- part of the trial court to hold that the action was-brought under these acts and that he was right in submitting the case to the jury upon that theory. .

notwithstanding this we think there were-errors on the trial .that cannot be overlooked.

The court declined to charge the jury, at the request.of defendant’s counsel, “ that there is no evidence-in the case authorizing the jury to impute negligence to the defendant on the character of this niachine, excepting this question of the guard. That the guard is the only defect in the machine which they can in any way on any possible hypothesis attribute to or connect with the defendant.” . And the-court stated it would leave that whole question to tire jury. This was excepted to. There was no such evidence- except .as to the absence of the guard, and the jury should, have- been' so instructed when the-request was made, so that they might not speculate as to any other ground- of liability with respect to the condition of the machine, which the proof showed was of standard make and similar in all respects to those used in all manufacturing .establishments of the kind, and was in good order.

The court also charged, over the defendant’s exception, that it was the duty of the- defendant under the law to promulgate rules and regulations for the operation of its factory and machinery, but did not inform the jury, nor did the evidence show what, if any,; rules or regulations would have been effective to protect the plaintiff. The charge, therefore, left it for the jury to speculate as to what particular rule Or regulation the defendarit should have promulgated, and in doing so they were confined only by the realm of their imaginations, with no evidence in the case to serve as a guide in forming their judgment.

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

All concurred, except Parker, P. J., not voting.

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