
    Giuseppe Impellizzieri, Respondent, v. Charles Cranford, Appellant.
    Second Department,
    December 30, 1910.
    Master and servant — negligence — injury by steam shovel — Employers’ , Liability Act — sufficiency of notice —' common-law action cannot be sustained under Employers’ Liability Act — negligence of fellow-servant — failure to give warning.
    A notice under the Employers’ Liability Act which contains an accurate statement of the physical cause of the injury is sufficient although it fail to specify the particular violation of the master’s duty out of which the negligent cause of the injury arose.
    Where an action has been tried and a verdict rendered for the plaintiff on the theory of a common-law liability only, but the evidence does not warrant such a finding, the judgment cannot he sustained under the Employers’ Liability Act, for the jury lias not passed upon the issues upon which .such liability may he predicated.
    Where an employee was injured by the unexpected descent of the arm of a steam shovel there can he no recovery in a common-law action where it appears that the accident was caused either because the fireman while climbing on the arm of ' the shovel accidentally struck a lever with his foot, or because the engineer was negligent in opening a throttle under his control, as in either case the negligence was that of a fellow-servant.
    Where there is no claim that the arm of the shovel descended by reason of any defect in the machinery or appliances and it was entirely due to the negligence of the plaintiffs fellow-servants as aforesaid, it is error to charge that it was part of the master's duty .to cause suitable warning to be given when special dangers arise'under which'his employees may he imperiled, '.oi' that •when he has delegated the performance of that duty to another, neglect in the performance of the duty makes him liable. This, because the master, if personally present, could not have warned the plaintiff in time to escape; and a master cannot be held liable for the conduct of an employee when similar con: duct on his owu part would not be actiomible negligence.
    Appeal by the defendant, Charles Cranford, from a judgment of-the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of "Kings on the 2(ith day of January, 1910, upon the verdict of a jury for $300, and'also from an order entered in said clerk’s office on the 28tli day of January, 1910, denying the defendant’s motion for a new trial made upon the' minutes.
    
      Harry S. Austin \Fdward J. Redington and Frank Y. Johnson with him on the brief],- for the appellant.
    
      Achille J. Oishei, for the respondent.
   Bdbb, J.:

On February 13> 1907, defendant was' engaged in making excavations for the purpose of sinking the railroad tracks of the Brighton Beach road. In connection with the work a. steam shovel Was employed. A long arm projected from the front of the machine, which could be raised and lowered or turned from side to side.' At its extreme end there was a heavy bucket. At the rear of the machine there was a driving engine, which ran-upon rails temporarily laid for the purpose. As the work progressed and all of the material within reach of the projecting arm had been removed, the rails'in the rear were taken up and placed in. front of the machine and' the machine moved forward. A gang of'eight or-ten-men were employed to operate this machine, one of whom' was the engineer, another the fireman, a third known as the craneman, and the others constituted the shovel gang. Plaintiff was one of this gang. At the time of the accident it became necessary to smooth down the earth in front of the machine and relay the rails, so that it could be moved forward,, and plaintiff was. -thus engaged. The arm of the machine, with the bucket at the end,- was raised to the height of about eight feet from the ground. A wire rope, which passed over a sheave at the extreme end of the arm, had slipped off and was resting upon the axle, and the craneman,together with the fireman, were, directed to climb up on this arm and replace the rope; While they were thus engaged, the arm suddenly descended and the bucket struck plaintiff, producing injuries to recover for which this action is brought.

The evidence is not clear as to the cause of the change in. the position of this arm. The fireman testified that as he was climbing up his foot struck a lever, and as the result of this it. descended. There was some evidence that the lever referred to in his testimony liad no effect upon the arm of the machine, so far as causing it to rise or fall was concerned; that its only purpose was to move it from right to left in a horizontal or nearly horizontal direction, and that the only mechanism which could cause the arm to descend as it did was in the cab of the engineer, and was controlled by him alone. '

The learned1 trial court submitted to the jury the question as to the cause of the descent of the arm, instructing them that if it was due to the act of the engineer the jury might find the defendant responsible for the happening of the accident. A verdict was rendered for plaintiff, and from the judgment entered on such verdict this appeal is taken.

The complaint alleged the service of a notice under the Employers’ Liability Act (Laws of 1902, chap. 600; Labor Law [Consol. Laws, chap. 31; Laws of 1909, chap. 36], § 200 et seq.), and the receipt of such a notice was admitted. The learned trial court, however, excluded it when offered in evidence upon the ground that it was insufficient under the statute.

In this we think the court erred. The notice contained a sufficiently accurate statement of the physical cause of the injury, and although it failed to specify the particular violation of' the master’s duty out of which the negligent cause of the injury arose, this was not a fatal defect. (Valentino v. Garvin Machine Co., 139 App. Div. 139.) Notwithstanding this error, this judgment .must be sustained if at all upon the ground that a common-law liability has been established. Where an action has been tried and a verdict rendered for plaintiff upon the theory of a common-law liability only, if the evidence does not warrant such a finding, the judgment cannot be sustained under the provisions of the Employers’ Liability Act, for the reason that the jury has not passed upon the issues on which such liability may be predicated. (Logerto v. Central Building Co., 198 N. Y. 390; Hammond v. Union Bag & Paper Co., 136 App. Div. 100.) Treating this as a common-law action the judgment cannot be sustained. If the bucket was caused to descend because the fireman, while climbing up the. arm, accidentally struck the lever with his foot, this was the negligent act of plaintiff’s fellow-servant; if it -was due' to the act of the engineer in opening a "throttle under his control,'thus permitting the steam to act upon the arm of the machine, this was not an act pertaining to the duty which the master owes to his servant, and for the engineer’s negligence the former is not liable. (Crispin v. Babbitt, 81 N. Y. 516 ; Cullen v. Norton, 126 id. 1.) The learned trial court, while Conceding the correctness of the rule as above'stated, charged the jury that it was part of the master’s duty to ■ provide that suitable warning should be given to his men when special dangers arise under which their lives or limbs may be imperiled, and when the master had delegated the performance of that duty to another, neglect in the performance of such duty would make the master liable. If this be an accurate statement of the law it has no application to the facts in this case. No special danger arose in the proper performance of the work. There is no claim that the arm descended by .reason of any defect in'the machinery' or appliances. It was due entirely to the negligence of either the engineer or the fireman. After this act of negligence, if the master himself had been personally present he could not have warned plaintiff in time to permit him to escape. He could not be personally charged with negligence therefor in omitting to give such warning. The master cannot be held liable for conduct on the part of an employee, when similar conduct on his own part would not be actionable negligence.

. The judgment and order appealed from must be reversed and "a liew trial granted, costs to abide the event. •

Jenks, Thomas, High and Care, JJ., concurred. ■

• Judgment and order reversed and new trial granted, costs to abide the event;'.'  