
    Hugh A. Chisholm, as Administrator, etc., of George D. Chisholm, Deceased, Respondent, v. Manhattan Railway Company, Appellant.
    First Department,
    December 7, 1906.
    Negligence — employee erecting telephone system killed on elevated railway — failure to show freedom from contributory negligence — Employers’ Liability Act — prior complaint in common-law action not equivalent to notice under statute.
    The plaintiff’s intestate was engaged in installing" a telephone system on the defendant’s elevated railway. At times it was necessary for the intestate to work upon the tracks, and to guard against .danger at such times the defendant employed a flagman to warn approaching trains. At the time of the accident, however, the intestate, carrying a heavy pulley block, was walking upon a sidewalk along the track which had a clearance of three feet three inches beyond passing trains. As no workmen were upon the track the flagman did not signal an approaching train, which, upon reaching the intestate, struck the pulley he was ' carrying, thereby causing his death. The motorman saw the plaintiff, but did not slacken speed. . ,
    
      Held, that, conceding the action to be brought under the Employers’ Liability Act, the plaintiff did not show the intestate to be free from contributory negligence as the injury was caused by his walking too near the track; that act has not changed the general law as to contributory negligence of an employee;
    That no negligence on the part of the defendant or its superintendent was shown.
    
      Held, further, that the service of a prior complaint setting out a common-law action for negligence, which prior action was discontinued, was not effectual as a notice under the Employers’ Liability Act. A notice sufficient under said act must set forth facts required by statute, and show an intention to make the claim for damages under the provisions thereof, and must be served within the prescribed time. ' .
    
      (Per Ingraham, J.): The motorman employed by the defendant was not guilty of negligence in failing to stop the train, nor was the flagman, conceding him to be a superintendent, guilty of negligence in not displaying the flag, as no person was upon the track and the signal would have been useless to the motorman. •
    Appeal by the. defendant, the Manhattan Eailway Company, ' from a judgment of the Supreme Court in favor of the plaintiff, entered' in the office of the clerk of the county of New York on the 19th day of February, 1906, upon the verdict of a. jury for $2,000, and also from an order entered in said clerk’s office on the 19th day of February, 1906, denying the defendant’s motion for a new trial made upon the minntes.
    
      Albert J. Kenyon, for the appellant.
    
      George H. Corey, for the respondent.
   Houghton, J.:

The plaintiff’s intestate, an employee of defendant, with others, under one Charles as foreman, was engaged at the time of the accident in installing a telephone system along defendant’s elevated railway on Third avenue in the vicinity of Seventy-second street. The telephone wires were to be contained in a lead cable which was suspended from the longitudinal girder. In placing hangers for this ' cable and in hauling it to its place the men worked from the top of the elevated structure, sometimes between the rails of the track and sometimes along • the footwalk at the side. This walk was covered with boards and extended five feet and three inches from the nearest rail, and was protected on the outer side by a handrail forty inches high. The cars of a passing train overlapped the rail two feet, leaving a clear walk of three' feet and three inches. The pulley blocks and ropes used for hauling the lead cable to its place were carried along this walk. At such times as the pulley blocks were being fastened or unfastened it was necessary for the men so engaged to work between the tracks, and at times the track was blocked by ropes or cable so that it was necessary for trains to come to a stop. The foreman was provided by the defendant with a red flag and a green flag, and instructed to use the red signal .when it was necessary to stop a train, and to post ‘the' green signal when it was proper to caution, the motormen of trains to take extra precaution of be on' the lookout for obstructions or danger. Just prior to thé accidént the foreman directed the plaintiff’s intestate to carry the pulley blocks' further up the track to- bé fastened for another haul of tlie cable. These blocks weighed' three or - four pounds each and were eliptical in form and eight or ten inches long. The deceased putdwo or three of these blocks, attached together by the rope; on ins left shoulder which, as he was proceeding, was next to any passing train, and in compan y with a man,, who was dragging the rope, proceeded northward. The man who hhd the rope asked to go ahead, and did so, walking four or five feet ahead of the deceased, the rope dragging behind him on the walk. A train, which gave no signal of its approach, came from the rear at about twenty-five miles an hour, and the side of the first car hit the blocks on the shoulder of the deceased and- threw him, inflicting injuries from which he died. The track wqs clear ; no men were working upon jt, and no ropes or cables were on the rails.. ¡No cautionary or danger flag was displayed. ¡

The complaint-is framed -under the Employees’ Liability Act (Laws of 1902, chap. 600)-, and the plaintiff claims-that Charles was a superintendent of the defendant,, exercising superintendence at the time, and that his omission to display the greeti cautionary flag Was an act of negligence for which the defendant is responsible.

Assuming that the-notice required by the Employers’ Liability Act was properly given; still we do not think the plaintiff showed facts entitling him to a recovery. The track was cleánand there was no reason why trains should not and could not pass- the point where plaintiff’s intestate was working at their regular speed. There was ño reason why the foreman should flag the train, which caused the injury, or why he should give ■ any notice that it must- i-un -With caution-. There was a walk more than three feet wide upori which the intestate could' proceed With safety and do the work hfe. was directed to do. This gave him ample room to avoid any passing train, and he knew that they were Constantly passing. It was incumbent upon him to walk such a distance from the rail that passing cars would neither hit his person nor the blocks upon- his shoulder.

The Employers’ Liability Act has not changed the general law with respect to contributory negligence. The 1st section provides that there can be recovery only where the employee “ is himself in the exercise of due care and diligence.” The modification of the doctrine of contributory negligence provided by section 3 of the act relates to continuance in the employment after knowledge of defects in the ways, works or machinery provided by the employer.

The plaintiff not only failed to prove that the superintendent in charge was negligent, but also failed to prove that his intestate was free from contributory negligence.

We have treated the case thus far as one under the Employers’ Liability Act. ño formal notice was given. A summons and complaint in a common-law action for negligence was served within the time prescribed for notice. That action, was discontinued and the present action begun, alleging that notice under the statute was uly given, which the answer denied. On the trial the plaintiff offered in evidence the first.complaint served, claiming it to be a notice under the statute. It was received in evidence over defendant’s objection that it was insufficient.

ñotwithstanding the intimation of. this court in Johnson v. Roach (83 App. Div. 351) that the service of such a complaint might be a compliance with the statute with respect to notice, upon further consideration we think it insufficient.

The provision of section 2 of the act with respect to notice is as follows: § 2. ño action for recovery of compensation for injury or death under this act shall be maintained unless notice of the time, place and cause of the injury is given to the employer within one hundred and twenty days and the action is commenced within one year after.the occurrence of the accident causing the injury or death. The notice required by this section shall be in writing and signed " by the person injured or by some one in his behalf, but if from physical or mental incapacity it is impossible for the person injured to give notice within the time provided in said section, he may give the same within ten days after such incapacity is removed. In case of his death without having given such notice, his executor or administrator may give such notice within sixty days after his appointment, 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.”

The giving" of the prescribed notice is a condition precedent to the .maintenance of an action for the recovery of compensation for injury or death under the Employers’ Liability Act. The act does not tafee away any common-law right of action for hégligence. It gives to the- employee an additional cause of action against his employer arising out of the negligence of a. superintendent or one acting as such. (Gmaehle v. Rosenberg, 178 N. Y. 147; Bellegarde v. Union Bag & Paper Co., 90 App. Div. 577; affd., 181 N. Y. 519.) An employee cannot bring his action; under the act and without amendment of his complaint recover upon a common-law cause of action. (Davis v. Broadalbin Knitting Co., 90 App. Div. 567; affd., 185 N. Y. 613.) At common law!a:i employer is bound to provide his employee Aith reasonably sáfe ways, works and machinery. Under the common law, although the employer is liable to his employee for the acts of his alter ego, he is not responsible for the negligent acts of one exercising superintendence in the management and .detail of the work, for such a person is deemed a fellow-servant." (Loughlin v. State of New York, 105 N. Y. 159 ; Cullen v. Norton, 126 id. 1.) The difference between a common-law action and one under the act is further.illustrated by the fact, that under the act the action must be brought within one year, while an action for "personal injuries' because of negligence at common law maybe brought at anytime within three years. (Code Civ. Proc..§ 383.) ■ ¡

The liability of the employer under the common! law and under the act being different, so far at least as his liability' for the negligence of his superintendent .is concerned, the notice, in order to permit'the bringing of an action under the statute, should be sufficient to apprise him that liability is claimed because of the statute and under its provisions.

In speaking of the essential elements of a notice required by statute to be given of the time, place and cause of injury upon a highway, quite similar in its provisions to those of the Employers’ Liability Act, the Supreme Court of Massachusetts! in Kenady v. City of Lawrence (128 Mass. 318) says: “ Eo statement of the facts-of the in jury or accident can he regarded as notice under the statute, unless it appears to have been made with the intention of giving that notice.” In treating of a revision of the same statute in another case (Bowes v. City of Boston, 155 Mass. 344), the court held that a person injured could not by notice give the cause of the injury as one defect and recover for another cause not disclosed.

Under the Employers’ Liability Act of Massachusetts, which is more liberal with respect to notice than our own, it is held that the bringing of an action under the act and mere service of the pleading is not a compliance with the requirements as to notice. (Foley v. Pettee Machine Works, 149 Mass. 294.) In another case, while it was held that the requirement of notice under the statute should not be construed with technical strictness, yet enough should appear by the notice to show that the notice was intended as a basis of claim for the injuries sustained. (Driscoll v. Fall River, 163 Mass. 105.) In McDougall v. City of Boston (134 Mass. 149) an instruction “ that the plaintiff was bound by the statement in the notice as to the cause of the accident, and was "limited to the defect stated therein,” was held proper.

Under thevEnglish act actual knowledge from verbal communica-. tian as to the time, place and cause of the injury does not excuse the giving of the statutory notice. (Keen v. Millwall Dock Company, L. R. 8 Q. B. Div. 482.)

Mr. Dresser, in his work on Employers’ Liability, after citing the decisions of the various States which have enacted statutes similar to our own, most of which require a similar notice, concludes as follows : “ The purpose of a notice is to give the defendant an early opportunity to investigate the question of his liability for the injury, while the conditions remain substantially the same and the means of investigation are at hand. The notice itself is not a part of the pleadings, and it need not state with technical accuracy a cause of action. It is, howexrer, information to the defendant of an injury 'Caused by his negligence in some regard, and in the absence of knoxvledge by the defendant he has a right to rely upon the plaintiff’s story of how the accident occurred. The statute relating to the inaccuracy of a notice relieves the plaintiff of the dangers arising from an inexact statement when he did not intend to mislead the defendant ".or when the latter was not in fact misled, When, therefore, a plaintiff gives a notice setting tip a certain cause of action, and the defendant has no reason to believe that the ' cause stated is not the one. upon which the plaintiff is to rely, the plaintiff should be concluded by the statements contained in his notice^ and not permitted at the trial to prove a different state of facts under a declaration Counting on a different cause of action.” (Dresser Einp. Liability, 180, § 33.)-

The service of the complaint alleging that the death of plaintiff’s intestate was causéd by common-law negligence in nó way apprised the defendant that the plaintiff intended to hold it liable under the Statute because of the negligence of its superintendent in carrying out the details of the work which he was superintending. On the contrary, from that complaint the defendant had the right to assume that a complete defense to plaintiff’s claim existed in the fact that its superintendent in the work he was performing was a coservant of the deceased, and hence that it was not liable for his negligence.'

The precise question under consideration, so far as we have-been able to ascertain, has not been passed upon by the courts of this State; but such decisions as have been made all sholw the necessity and importance of the notice in order to entitle a party to claim the benefits of" the-Employers’"Liability Act. (Gmaehle v. Rosenberg, supra; Johnson v. Roach, supra; Hoehn v. Lautz, 94 App. Div. 14; Randall v. Holbrook Contracting Co., 95 id. 336; Grasso v. Holbrook, Cabot & Daly Co., 102 id: 49; O’Neil v. Karr, 110 id. 571.)

Our conclusion is that the service of the complaint alleging commón-law negligence only, was.ineffectual as a notice and that in order to entitle an employee, or his representatives in case of death, to recover under the Employers’ Liability Act, a notice setting forth the facts required by the statute and showing ‘an intention to make a claim for damages under the provisions of the act, must be served within the prescribed time. i ' ■

It is not claimed that the plaintiff made a. casé'excépt under the act. - - -

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

Pattubson, Ingraham, klcLAUGHbiif and Scott, JJ.,. concurred-

Ingraham, J. (concurring):

I concur with Mr. Justice Houghton in his opinion. It is quite evident that the failure of the foreman to display a flag to warn approaching trains was not the proximate cause of the injury. The motorman of the car was called by the plaintiff and testified that as he approached Seventy-fourth street he observed two men walking on the footpath, east of the track, one ahead of the other, the man in the rear carrying something on his shoulder. The object of' displaying the flag was to warn approaching trains that workmen were working on the track, so that the motorman could proceed with caution. The motorman of this train saw the men and, therefore, had all the notice that would have been conveyed to him if a flag had been displayed. Accepting the motorman’s testimony, it is quite clear that he was not guilty of negligence. So far as I can see, there is nothing to impeach his evidence 'that it was the action of the plaintiff’s intestate in moving towards the car when the front of the train had caught up with him that caused the injury. If it could be said that the foreman, as the person charged with the acts of superintendence, was guilty of negligence in not displaying this flag, that negligence had no relation to the accident, as the motorman saw all that the flag would have told him; certainly the motorman was not charged with the duty of superintendence in relation to the deceased.

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