
    Selma Mattson, as Administratrix, etc., of Mat Mattson, Deceased, Respondent, v. Phœnix Construction Company, Appellant.
    First Department,
    December 30, 1909.
    Master and servant—negligence — injury by failure to brace column.
    A master who has furnished sufficient material for bracing an iron column so as ■ to hold it in a vertical position until it can be imbedded in cement is not liable under the Employers’ Liability Act for the failure of his superintendent to direct the column to be braced, whereby it fell and injured an employee while he, with others, was moving it with crowbars.
    Houghton, J., dissented.
    Appeal by the defendant, the Phoenix Construction 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 11th day of January, 1909, upon the verdict of a jury for $5,000, and also from an order entered in said clerk’s.office on the 13tli day of January, 1909, denying the defendant’s motion1 for a new trial made upon the minutes.
    
      Frank V. Johnson, for the appellant.
    
      H. H. Van Dyck, for the respondent.
   McLaughlin, J.:

The plaintiff’s intestate, while in the employ of the defendant, was killed by an iron casting some fifty-seven inches high, forty inches in width at the base, and five and a half inches thick, weighing some 1,300 pounds, falling upon him. It was designed to be placed vertically across a pit thirty inches in width and three feet deep, and imbedded-in cement. Immediately preceding the acci. dent the casting had been raised by the intestate and other workmen from a horizontal position on the ground to a perpendicular position, and placed over the pit, which extended on each side-some 1 twenty inches. This was approximately the position ultimately intended for the casting before it was imbedded in .the cement, but in order to get it into its true position it had to be moved slightly both laterally and vertically. While it was being thus moved “by means of crowbars and shims ” it fell over, struck the intestate on the head, and inflicted injuries from which he died shortly thereafter. Plaintiff sought to sustain the action to recover damages for the death upon the ground that the defendant was responsible therefor under the Employers’ Liability Act (Laws of 1902, chap. 600) in that such death was caused by or resulted from the negligence of the defendant’s superintendent.

At the trial no evidence was offered on the part of the defendant. Plaintiff had a verdict, and from the judgment entered thereon and an order denying a motion for a new trial defendant appeals.

I am of the opinion the judgment should be reversed (1) because the court erred in -receiving in evidence what purported to be a notice under the Employers’ Liability Act; and (2) because the evidence did not justify a finding that the- death of the intestate was caused by the negligence of the defendant or its superintendent.

To bring a case within the statute, a notice must be served within the time provided, stating the time, place and cause of the injury.

Such notice is a condition precedent to the maintenance of the action. (Chisholm v. Manhattan R. Co., 116 App. Div. 320.) The purpose .of the notice is to acquaint the employer with the .negligent act, for which it is proposed to hold him liable (Galino v. Fleischmann Realty & Construction Co., 130 App. Div. 605), and where the liability is to be predicated upon the negligence of a superintendent or a person occupying that relation, then the negligent act of such person must be stated. (Glynn v. N. Y. C. & H. R. R. R. Co., 125 App. Div. 186.) In either case “ the notice in stating the cause of the injury should with reasonable definiteness and completeness * * * indicate the negligent or wrongful misconduct of the employer really claimed to have been the cause of the accident and really relied on as the basis of the complaint against him.” (Finnigan v. N. Y. Contracting Co., 194 N. Y. 244.) The only statement in the notice here under consideration as to the cause of the accident is that the same was “ caused by reason of defects in the condition of the ways, works and machinery connected with and used in your business and by your negligence and by the negligence of a person or persons in your service intrusted with and exercising, superintendence or acting as superintendent with your authority or consent, whereby a heavy casting was caused to fall upon the said MaiMattson.”

What Was the negligent aet relied on ? What caused the casting to fall ? PTo one reading the notice can tell. These questions are not answered by saying that if. the casting had been properly supported it would not have fallen; that would be true if the doctrine of res ipsa loqidtur applied, but as I understand we are all agreed that such doctrine does not apply to an accident of this character. The defendant Was entitled to be informed, to the end that it might at once upon .'receipt of the notice make an investigation and, if the facts stated in the notice in this respect were found to be true, compromise with the plaintiff.

. The precise question in this respect was considered and determined by this court in Bertolami v. United Engneering & Contracting Co. (132 App. Div. 804). In that case the notice was that the death of the intestate was caused by the negligence of the defendant, in that it had failed to furnish him with a reasonably safe place to work, and failed to reasonably safeguard, inspect and keep safe the place, appliances and apparatus used in connection with said contracting operation, and failed to .furnish deceased and said contracting operation with reasonably safe appliances, apparatus, cables, ropes, wires, buckets, ways, Works and machinery with which to do said work, and knowingly employed and retained incompetent-''foremen and coworkmen to guide, direct and assist him in the performance of his - work,' and failed to formulate, promulgate and-enforce proper" rules and regulations for the safety of deceased and his said eoem.ployees, as a result of all of which large quantities of rock and earth and a bucket were caused to fall upon the body of the said George Bertolami and -injure 'and kill him, as aforesaid.” It was held that, the notice was defective in that it failed to state the specific negligent act of the superintendent relied upon.

The notice here under consideration is no more specific than the one' there was and for that reason the court should have sustained the objection made by the defendant to its reception in evidence.

But if- it be assumed that the notice was sufficient under the statute, then I am of the opinion the evidence failed to disclose any negligence on the part of the superintendent, or the person acting as such, which resulted in the accident. All that is claimed is that the superintendent should have seen to it that the casting was supported or braced in some way, but whether this was so or not was a matter of judgment on his part. The defendant had provided sufficient materials for bracing if the workmen employed deemed such braces or supports necessary. There was plenty of lumber to be had and the work had been progressing for some time, during which the workmen in attendance had been able to maintain the casting in its upright position without any braces, and the record is absolutely barren of anything to indicate, until it ■fell, that braces were necessary.

An award of damages must be based upon evidence and not upon ■ mere conjecture. This verdict has only the latter to sustain it, and for that reason the judgment and order appealed from must be reversed and a new trial ordered, with costs to appellant to abide event.

Laughlin, J., concurred; Ingraham and Scott, JJ., concurred on second ground ; Houghton, J., dissented.

Laughlin, J. (concurring):

I agree with Mr. Justice .McLaughlin that the notice was insufficient to warrant a recovery under the Employers’ Liability-Act. On the facts developed upon the trial the only theory upon which the defendant could be held liable would be that its superintendent'was guilty of negligence with respect to directing or overseeing the work of putting the casting in place. Of course if the cause ” required to be stated in such a notice is the immediate or physical cause of the injuries, then the notice would be sufficient, and the statement therein with respect to the negligence of the defendant and of its ' superintendent would not be required and might be deemed surplusage. The Legislature has only required that one cause shall be stated, and the question is what is the cause which is required to be stated. I am of opinion that it is the negligent cause and not the physical cause of the injury. If this be not so, then- a notice that at a particular place and on a particular day and at a particular hour an employee, while working at his bench, was injured by the fall of a timber, or beam upon him, would answer the requirements of the statute. That would in no manner point out to the employer the ground upon which it was claimed that he was at fault, and according to the decision of this court in Ortolano v. Degnon Contracting Co. (120 App. Div. 59), and of the' Court of Appeals in Finnigan v. N. Y. Contracting Co. (194 N. Y. 244), this is required. It is not sufficient to state generally as the cause that the defendant was negligent or that its superintendent was negligent; but the particular negligence must, I think, be pointed out briefly and in general terms, and then if it appears upon the trial that there was a mistake inadvertently made in the notice which did not'mislead the employer, the notice will still be good by virtue of the express terms of the statute. ■ (Employers’ Liability Act [Laws of 1902, chap. 600], § 2; Finnigan v. N. Y. Contracting Co., supra.) It is significant, I think, as bearing" on the construction of the statute that the nature or extent of the ^injuries is not required to be stated. The Legislature appears to have assumed that if the time and place are . given the master is then in a position to ascertain whether the accident occurred and the determination of that question would in ■ most, if not in all instances, reveal the instrumentality by which the injuries .were inflicted; but would not necessarily disclose the actionable cause which it was intended should be stated in the notice.

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