Opinion
November 27, 1912.
James J. Mahoney, for the appellant.
Thomas J. O'Neill [ L.F. Fish with him on the brief], for the respondent.
Present — JENKS, P.J. HIRSCHBERG, BURR, THOMAS and CARR, JJ.
The action is brought under the Employers' Liability Act (Laws of 1902, chap. 600), as embodied in the Labor Law (Consol. Laws, chap. 31 [Laws of 1909, chap. 36], §§ 200-204). The plaintiff has recovered a verdict, and the appeal is from the judgment only. The notice of appeal states that the appellant will bring up for review the order denying motion for a new trial, apparently pursuant to the provisions of section 1301 of the Code of Civil Procedure allowing such incidental review from an interlocutory order. Without passing upon the propriety of the pecular practice, I think the result of the appeal in this instance would be the same if the notice had been drawn in the usual form for an appeal from both judgment and order.
The accident in which the plaintiff sustained the injuries of which he complains occurred on the 30th day of October, 1909, in the borough of Manhattan, while the plaintiff was engaged as an employee of the defendant in the construction of the Gimbel store, at Thirty-second street and Sixth avenue. The defendant was engaged at the time in the work of hoisting iron beams and girders with a derrick and boom under the superintendence and direction of a foreman in charge of the work, named Lewis, and the plaintiff was one of the workmen engaged under Lewis' supervision and control. To the boom were attached a ball with a big hook and a "twin-chain," as it is called, for hoisting heavy girders. The twin-chain was not suitable for the work of hoisting lighter loads, and the custom was to detach it at such times. On the day in question, however, after the heavy girders had been hoisted and there was no further immediate use for the twin-chain, it was left hanging on the apparatus instead of being taken off. The evidence establishes the fact that it was dangerous to so leave it. The attention of Lewis was directed to the fact by one of the workmen, but he refused to permit it to be taken off and insisted on the work being continued with the twin-chain hanging on the end of the boom, as stated. Lewis was examined as a witness himself on behalf of the defendant, and he admitted that it was customary to remove the twin-chain but that it was not done on the occasion in question because they were in a hurry. The result of the work in the manner in which it was done was that while the plaintiff was engaged in the hoisting of the light loads the hook of the twin-chain fell upon his head and inflicted the injuries sustained by him.
The main points presented by the appellant are that the notice served under the statute was defective; that Lewis was not such a superintendent as is meant by the act in question; and that his direction for the use of the derrick and boom with the twin-chain hanging to them was a mere detail of the work.
I think the notice was sufficient. The statute requires that it should state "the time, place and cause of the injury." The time and place are stated accurately, and the notice further states that the plaintiff was struck by the chain and hook and was thrown and sustained serious and permanent injuries to his head and body, and that the injury was caused "by the negligent act of your superintendent in directing and permitting the operation of a derrick and boom with a chain not in use attached thereto and which should not have been on the boom, and by the negligent act of said superintendent in directing and permitting said derrick to be boomed out too far and by the negligent and careless manner in which said derrick was constructed, placed and operated, and by your failure to formulate and enforce appropriate rules affecting the situation and in that you conducted the work by dangerous and unsafe methods."
Lewis may not have been called a superintendent. He was, however, unquestionably acting at the time as such, being intrusted by the defendant with the duty of superintendence, and there was no other superintendent present than himself. The fact, if it be a fact, that the leaving of the twin-chain hung on the boom was a mere detail of the work does not affect the result. In Guilmartin v. Solvay Process Co. ( 189 N.Y. 490) the injury resulted from a failure on the part of the foreman, under whose direction the work was being done, to stop the engine; and the court held that notwithstanding such failure was negligence in a mere detail of the work, it did not relieve the master from liability where the foreman was acting as superintendent, and that his failure to stop the engine was an act of superintendence. After examining the trend of the authorities, Chief Judge CULLEN said (p. 495): "Therefore, the question in any case brought under the statute is not whether the negligent act is a detail of the work, but whether it is a detail of the superintendent's part of the work, or of that of the subordinate employees and servants. In the present case had the foreman, Mullin, attempted to stop the engine himself and so carelessly done the work as to cause injury to other employees, that might very well be deemed the negligence of a coservant for which the master would not be liable; but the determination of the question whether the machinery should be stopped before the men were put to work on it was of a very different character. None of the other workmen could direct the engine to be stopped. Mullin alone had that power. His direction in reference thereto, or failure to direct, was an act of superintendence. At least, the jury was authorized to so find."
In Boyle v. McNulty Brothers ( 129 App. Div. 412) this court held that the act of a foreman in charge of work, who ordered an engineer operating an elevator to raise the same by giving an erroneous signal which caused it to be lowered, was an act of superintendence. Mr. Justice MILLER said (p. 414): "It is undisputed that said foreman was a superintendent within the meaning of the Employers' Liability Act. The work was being done under his personal supervision and direction. His act, in directing the engineer to raise the elevator in response to the signal of one bell, was an act of superintendence. ( Guilmartin v. Solvay Process Co., 189 N.Y. 490.)" (See to the same general effect, Buckley v. Beinhauer, 136 App. Div. 540; McHugh v. Manhattan R. Co., 179 N.Y. 378; Gallagher v. Newman, 190 id. 444; Smith v. Milliken Brothers, Inc., 200 id. 21.)
The case presents no ruling which seems to require a reversal, and the judgment should be affirmed, with costs.
Judgment unanimously affirmed, with costs.