Hurley v. Olcott

Miller, J.: I entertain some doubt whether the notice referred to in the foregoing statement of facts was ever mailed to the defendants, but none of the reasons urged against the judgment appear to me sufficient to justify reversal. I shall consider them in order. (1) The notice was sufficient “ notice of the time, place and cause of the injury.” It is not disputed that time and place were correctly stated, and there can be little more doubt that the. cause of the injury was accurately stated. The plaintiff’s leg was broken by an iron column falling upon it. The “ cause of the injury ” was the fall of the column upon the leg. The notice stated that the columns were placed one on top of the other, and that the top one — 635 — rolled or was pushed off onto the plaintiff’s leg, breaking it. That was a definite and precise statement of the cause of the injury. The cause of the injury and the cause, the negligent act resulting in the occurrence of the accident, are not the same; and the statute * plainly distinguishes between the two. The language is: “ Ho 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 occurrmce of the accident causing the injury or death” (Italics are mine.) The purpose of the statute is to notify the employer of the occurrence, of the happening, that he may investigate it while it is still fresh. This conclusion is supported by the decisions of this court. (Kennedy v. N. Y. Telephone Co., 125 App. Div. 846; Lobasco v. Moxie Nerve Food Co., 127 id. 677; Palmieri v. Pearson & Son, Inc., 128 id. 231, and cases cited.) The case of Finnigan v. N. Y. Contracting Co., 194 N. Y. 244), relied upon by the appellants, does not decide the contrary. The notice in that case was not, like this, a definite and precise statement of the cause of the injury, but instead a general statement of practically every ground of negligence of a master known to the law. But if it be necessary to state the cause of the accident as well as the cause of the injury, this notice is good, for it states that the two steel columns were placed in a careless position, one on top of the other. The negligence of the superintendent relied upon was his direction that the columns be thus pláced near the foot of the mast in view of the fact that the boom was controlled only by a three-quarter inch rope old and worn, and that the derrick was out of plumb. Surely the notice, which the statute contemplates may be served by an ordinary workman, does not have to be a complaint, much less a bill of particulars. (2) The statute provides: “ The notice may be served by post by letter addressed to the person on whom it is to be served, at his last known place of residence or place of business, and if served by post shall be deemed to have been served at the time when the letter containing the same would be delivered in the ordinary course of the post.” In view of the plain language of the statute, I do — 636 — not think it is arguable that service by mail is not good unless the letter is actually received by the defendant. The fact that the letter was never received by the defendant, if that be the fact, might furnish a cogent reason for thinking that it was never sent; but upon the evidence that question was for the jury, and their finding has not been challenged. (3) It was not error to submit the question to the jury whether Fiske was acting as superintendent in the absence of Craig. I think that the evidence justifies the finding that Fiske was a person “ entrusted with and exercising superintendence whose sole or principal duty is that of superintendence,” regardless of the absence of Craig. The appellants rely upon Abrahamson v. General Supply & Construction Co. (112 App. Div. 318). In that case, as here, the person whose negligence was relied upon by the plaintiff as furnishing ground for recovery was a “ pusher ” in charge of a gang of ironworkers; but it appeared in that case that the “ pusher ” was employed to do and was engaged in manual labor the same as the others. His principal, duty was manual labor. His leadership or superintendence was but incidental. In this case the evidence of the defendants shows that Fiske was employed to direct the men. That was his sole and principal duty. The mere fact that of his own volition he occasionally lent a hand to hasten the work does not change the case. (Prendible v. Connecticut River Manuf. Co., 160 Mass. 131; Crowley v. Cutting 165 id. 436; Reynolds v. Barnard, 168 id. 226.) Fiske was entrusted with and exercising superintendence as plainly as was Morris in Faith v. N. Y. C. & H. R. R. R. Co. (109 App. Div. 222; affd., 185 N. Y. 556), or Sapp in Carlson v. United Engineering & Contracting Co. (113 App. Div. 371), or Illman in Mikos v. N. Y. C. & H. R. R. R. Co. (118 id. 536). The statute does not require that the person for whose negligence the master is made responsible shall be a general superintendent, but only that he shall be a person “ entrusted with and exercising superintendence whose sole or principal duty is that of superintendence.” Mo matter how limited his authority maybe,if he comes within that definition the master is liable for his negligence. The draftsman of that statute understood that a superintendent or one exercising superintendence might have general or limited authority, for by section 3 the employee is required to — 637 — give information of defects known to him to the employer or to some person intrusted, with “ some general superintendence.” According to the common, ordinary acceptance of the word “superintendence” it imports little more than oversight and direction, and such is the meaning of the term according to the lexicographers. Fiske was employed to exercise oversight, to take charge of a particular part of the work and to direct how it should be done. It was not necessary that he should have the power to employ or discharge men, though, according to his testimony, he did employ the plaintiff. His act in directing where and how the column should be placed was an act of superintendence and his duties were those of superintendence. (McHugh v. Manhattan R. Co., 179 N. Y. 378.) The mere fact that there was a general superintendent over all does not affect the question. (McBride v. N. Y. Tunnel Co., 101 App. Div. 448; Carlson v. United Engineering & Contracting Co., supra.) (4) I do not think the exception to the charge respecting the assumption of risk sufficient to present the point argued by the appellants. It is obvious from the portion of the charge quoted in the above statement of facts, and from its context, that the court had reference to the inherent, necessary risks which the servant is conclusively presumed to have assumed. The language of the statute on that subject is: “ An employee by entering upon or continuing in the service of the employer shall be presumed to have assented to the necessary risks of the occupation or employment and no others. The necessary risks of the occupation or employment shall, in all cases arising after this act takes effect be considered as including those risks, and those only, inherent in the nature of the business which remain after the employer has exercised due care in providing for the safety of his employees, and has complied with the laws affecting or regulating such business or occupation for the greater safety of such employees.” There is 'a plain distinction between necessary risks, i. e., those risks arising after the master has performed his duty, and obvious risks, i. e., those which may be due to the master’s failure to perform his duty. It may be that some confusion of thought has resulted from not carefully distinguishing between the two kinds of risks, and that it were better to omit any reference to the assumption of necessary risk, because the — 638 — master owes no duty to protect the servant from such risks, and negligence cannot be based on a failure to furnish such protection. But the doctrine of assumption of risk has been placed on the ground of contract, and it seems more scientific to say that the servant contracts to assume the necessary risks, i. e., those within the contemplation of the parties when the contract of hiring is made, than it does to say that he contracts to assume obvious risks, i. e., those arising from the master’s negligence which he knows nothing about when entering into the' contract. But it is profitless now to discuss the point whether the doctrine of the assumption of obvious risks should have been founded on contract or on the maxim volenti non fit incuria ; it is enough for our present purpose that the statute makes a distinction between the two classes of risks. The charge in question was germane. The defendants’ contention was that the accident was unexplained, that it was one of those occurrences which sometimes happen in the doing of that kind of work, and was one of the inherent, necessary risks of the business. The charge excepted to, as it was plainly intended by the learned judge and as it must have been understood by the jury, was to the effect that if the accident happened from some.unexplained cause, and not because the boom swung over and hit the column, as claimed by the plaintiff, there could be no recovery. Instead of being unfavorable, it was favorable to the defendants. The court was not requested to and did not charge respecting the assumption of obvious risks, further than to reply to counsel’s statement to the effect that the plaintiff must assume the risks where the defendant is negligent, by saying: “If the risks are manifest when he goes to work.” No exception was taken to that statement, and no request was made for a further charge. The evidence shows that the plaintiff was an experienced workman, that he had observed the rope used for the boom line and knew of its being broken, and that the practice of piling the columns one above the other had been continued for some time to his knowledge. It does not appear that he knew that the derrick was out of plumb. However, a jury might well have found that the plaintiff fully understood and appreciated the dangers of the work as it was prosecuted, and that by continuing in the service he assented thereto. But under the statute that question had to be submitted to the jury. (Clark v. N. Y. C. & H. — 639 — R. R. R. Co., 191 N. Y. 416.) It was doubtless an oversight on the part of the learned trial judge that he did not charge the jury fully on that subject, but an exception to his failure to do so should point to such failure. Counsel should either have called the judge’s attention to the fact that he had not charged on that question, or have made an appropriate request to charge. “ Doubt as to the application of an exception defeats' it,” (Clark v. N. Y. C. & H. R. R. R. Co., supra.)' Technically, it is not correct to say that the servant only assumes the risks arising after the master has performed his duty, for, while that is correct as applied to the necessary risks, it is obviously misleading when applied to obvious risks, both of which the servant is held to assume on the ground of implied contract. (Dowd v. N. Y., O. & W. R. Co., 170 N. Y. 459.) But the trial judge was talking about necessary risks. What he said 'on that subject was justified both by the statute and by decisions so numerous . that it would be profitless to cite them. Sentences extracted from a charge and dissociated from their context cannot be made the basis of reversal. The charge excepted to, construed with reference to what it referred to, was correct. In response to the statement of counsel the judge said that the servant assumes the risks which are manifest when he goes to work. If the defendants were not satisfied with that statement they should have requested a fuller explanation. If the law respecting the assumption of obvious risks had plainly been explained to the jury with reference to the facts in the case, they might have found that the plaintiff voluntarily continued in the service, with full knowledge of the dangers to which he was subjected ; and we might — I am far from suggesting that we should — have thought that a finding for the plaintiff on that question was against the weight of the evidence. But no exception plainly presenting the question is found in the record, and the only complaint on the facts is that the verdict is excessive. In view of the age of the plaintiff, his earning capacity, and the very serious injury plainly due to the accident, we cannot say that the verdict was too large. The judgment is affirmed. Present — Hirschberg, P. J., Jenks, Burr, Rich and Miller, JJ. Judgment and order unanimously affirmed, with costs.