
    Michael Kennedy, as Administrator, etc., of Thomas J. Kennedy, Known as Frank Kennedy, Deceased, Respondent, v. The New York Telephone Company, Appellant.
    First Department,
    May 22, 1908.
    Blaster and servant — negligence■—-death by fall from stepladder — ¿ontributory negligence-—Employers’ Liability Act — insufficient notice —negligence of fellow-servant and assumption of risk.
    The plaintiff's intestate, a painter of sixteen years’ experience, was killed by falling from a stepladder five and a half feet high which he selected for use at the direction of the defendant’s foreman. The legs of the ladder were held from spreading by ropes instead of iron rods or side pieces. There was no proof as to what caused intestate to fall, and when last seen he was standing upon the extreme top of the ladder reaching out to paint the ceiling or upper part of the side walls. After the accident, the ladder was found unbroken. On all the evidence,
    
      Hihl, that the-plaintiff had failed to prove the intestate free from contributory-negligence.
    There can he no recovery under the Employers’ Liability Act unless the person injured was at the time exercising due care and diligence.
    A notice stating that the cause of injury was due to negligence in not providing a safe and proper place to work and in omitting to furnish safe and proper appliances and implements with which to work, does not meet the requirements of the Employers’ Liability Act. While such notice need not state the defective conditions complained of, it must state what caused the injury and how the accident happened in such a way that the employer may be apprised of what took place and thus be enabled to make an intelligent investigation.
    When a notice is insufficient to bring the case within the Employers' Liability Act and the plaintiff therefore relegated to the rule of the common law the negligence, if any, of a foreman in directing the use of a defective stepladder, good ones having been provided, is that of a fellow-servant, and the person injured assumes the risk of using such ladder even if defective, having the same knowledge of its condition as the defendant.
    Appeal by the defendant, The New York Telephone Company, from a judgment of the Supreme Court in favor of the plain tiff, entered in the office of the clerk of the county of New York on the 7th day of November, 1907, upon the verdict of a jury for $9,000, and also from an order entered in said clerk’s office on the 11th day of November, 1907, denying the defendant’s motion for a new trial made upon the minutes.
    
      
      Theron G. Strong, for the appellant.
    
      Julius M. Mayer, for the respondent.
   Houghton, J.:

The plaintiff’s intestate was employed by the defendant as a painter in a building under construction by it. Shortly before the accident resulting in his death, he and a companion were directed by the foreman of defendant to find a stepladder for use in painting a hallway. Several ladders were furnished by defendant but all were in use except two which appear to have been laid aside. The deceased selected the better one and showed it to the superintendent and complained to him that it was not in good repair, but was directed by the superintendent to use it. The ladder was an ordinary stepladder about five and a half feet high, and the legs or braces were hold by ropes instead of iron rods or side pieces. The deceased placed it in position for use on the marble tiling floor of the hallway, pushing out the legs until the ropes were taut, and proceeded to the top with his paint bucket and brush. His companion worker was standing on the floor and painting near him and not far from the back or brace end of the ladder. The last that this companion or any one saw of the deceased was when he mounted to the extreme top of the ladder and dipped his brush in his bucket and reached up and out to paint the ceiling or upper part of the side wall. He testifies that the next thing he knew the ladder was collapsing and pitching towards him, and that it and the deceased fell upon him, the deceased striking his head inflicting injuries from which he shortly died.

The theory of the plaintiff is that the ladder furnished by defendant was unsafe and that its legs were fastened by ropes instead of an iron rod or brace to hold them and prevent collapsing. There was proof that stepladders of this description were usually provided with rods or braces, and there is some proof that the ladder in qnestion.originally had them but upon their being broken or torn off ropes were substituted.

■ The ladder was produced in court and certain illustrations and experiments made with it during the progress of the trial. It was conceded that as long as the legs remained sufficiently extended to .straighten, the ropes the ladder was as safe as it would have been had iron rods or braces been used in their place. ¡Nothing was broken in any way about the ladder after the accident.

The plaintiff contends that the proofs bear out the theory that as the decedent stood on the top of the ladder reaching forward to do his work, he threw the center of gravity on the legs and dragged the step part forward on the smooth tiling of the floor, causing the ladder to pitch forward over the legs, and that this could not have happened if rods or iron braces had been used at the sides instead of ropos, because the rods would have prevented tho ladder from shutting.

The action is in form under the Employers’ Liability Act, and if it be conceded that the notice given was sufficient to bring it within the provisions of the act and thereby charge the defendant with any negligence of its superintendent in directing or permitting the deceased to use a ladder which may have been defective, still we are of the opinion that the plaintiff failed to prove that the accident was caused without negligence on the part of the decedent, and the judgment must be reversed because the verdict of the jury in that regard was against the weight of the evidence.

The deceased must have known from his experience of sixteen years as a painter that the ladder he was using would fall in some direction if he did not maintain his proper balance, or if he attempted to reach too far or did not stand with proper steadiness. The ladder was an ordinary one of no great height and could be used with perfect safety with proper care. Ordinarily it would tip sideways if one standing on top of it lost his balance; but failure to maintain proper equilibrium might also have precipitated the ladder in the direction and in the manner testified to. It was as

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much an act of his own that he drew the steps of the ladder toward the legs as it would have been had he tipped it sideways. There being no proof as to the care which he exercised, the circumstances shown are not sufficient to permit the inference that he used proper care.

The principle invoked in Irish v. Union Bag & Paper Co. (103 App. Div. 45 ; affd., 183 N. Y. 508) and in McHugh v. Manhattan Railway Co. (179 id. 378) is not applicable. In the former case the deceased was put to work near a pipe which, unknown to him, was negligently charged with electricity. In the latter case the deceased entered between cars to couple them, and the evidence warranted the conclusion by the jury that the train was negligently started after he had made the coupling and before he could emerge from his perilous position.

While it is true that in cases of death less evidence of lack of care is required than where the person injured is able to testify, still in all cases vvhere it is assumed there was sufficient care on the part of the deceased, the circumstances disclosed tended to show that an inherently dangerous situation existed from which it was a fair inference to assume either that the deceased had no knowledge of it, or that he probably did what he could to extricate himself and prevent injury. In the present case this principle does not apply, for manifestly in some unexplained way the deceased must so far as the evidence disclosed, have tipped the ladder himself and brought about his own fall.

The Employers’ Liability Act does not relieve the person injured from proper care because it expressly provides that an action under its provisions may only be maintained when the person who is injured is himself in the exercise of due care and diligence at the time. (Employers’ Liability Act, Laws of 1902, chap. 600.)

But the notice which the plaintiff served was not sufficient to permit him to bring the action under the provisions of that act. The time and place are accurately stated, but the cause of injury is described as due to your negligence in not providing him with a safe and proper place to work in, and your negligence in omitting to furnish safe and proper appliances and implements with which to perform his work.” This general language, in our opinion, does not constitute a good notice. It is no notice at all of the cause of the accident. A general statement that an accident was caused by defendant’s negligence in failing to furnish a safe place to work, and suitable tools and appliances, is not a sufficient statement of the cause of the injury to satisfy the statute. (Finnigan v. New York Contracting Co., 122 App. Div. 112; Ortolano v. Degnon Contracting Co., 120 id. 59; Miller v.Solvay Process Co., 109 id. 135; Dalton v. Salem, 131 Mass. 551.) While a notice need not state the defective condition complained of, it should state what caused the injury and how the accident happened in such a way that the employer may be apprised of what took place and thus be enabled to make ah intelligent investigation. (Barry v. Derby Desh Co., 121 App. Div. 810 ; Whitman v. Groveland, 131 Mass. 553.)

The notice which the plaintiff served not being sufficient to bring the action within the provisions of the Employers’ Liability Act, no cause of action at common law was proved for the assumption .of risk and negligence of the superintendent, if. any there was, would be eliminated. The superintendent was a coservant under the common-law rule, and the deceased assumed the risk of using the ladder, even if it was defective, for he knew its condition as well as the defendant.

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

Ingbaham, McLaughlin, Laughlin and Scott, JJ., concurred.

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