Cloonan v. Arthur McMullen Co.

Stapleton, J.: The defendant corporation was constructing an abutment for a bridge, planned to cross the Harlem river. It was sinking a cylindrical tube in the earth. The plaintiff’s intestate was one of a gang of four men who were excavating in a work chamber sixty feet below the ground. O’Malley was the foreman, intrusted with authority to direct, control or command the other employees. They were working in compressed air. O’Malley gave the signal to lower an iron bucket through the caisson or shaft to the place where the gang were working. At that moment the shoring gave way and started to settle, and water came in the work chamber. The foreman, to avoid injury, ordered the workmen to ascend the rope ladder leading from the chamber through the caisson or shaft to the ground surface. When or after ordering the men up he did not counteract his previous order to have the bucket lowered, although there was a customary and well-understood stopping signal. The bucket descended and struck plaintiff’s intestate as he was ascending the ladder, causing his death. The casualty occurred on the 19th day of June, 1913. A notice served under section 201 of the Labor Law (Consol. Laws, chap. 31 [Laws of 1909, chap. 36], as amd. by Laws of 1910, chap. 352) was struck out, after having been received in evidence, because of an inaccuracy in stating the place of the accident. We reproduce the material portion of the notice: “ * * * in and about the construction of the foundation of an abutment and bridge at or near 225th Street and Harlem Eiver, City of Hew York, and on said day was engaged at work in a shaft with a [256] gang of men excavating for the abutment of one side of said bridge.” The undisputed proof is that the structure was located at One Hundred and. Thirty-first street and the Harlem river. The defendant demanded in writing a further notice. The demand failed to specify the particular in which the first notice was claimed to he defective. It erroneously stated it was defective in all essentials. The plaintiff did not comply with that demand. There is evidence that only one abutment was being built at the time. This is sufficient to show there was no intention to mislead the defendant, and that it was not in fact misled thereby. (Heffron v. Lackawanna Steel Co., 121 App. Div. 35, 41.) There is a distinction between the misleading effect of the inaccuracy in the notice we are considering and the inaccuracy of a statement by an injured employee himself that he was injured by an improperly guarded machine upon which he was working, when in fact he was injured by another one of a number of machines in the employer’s place of business. (See Welch v. Waterbury Co., 206 N. Y. 522.) The validity and sufficiency of the notice should he tested by regarding the existing facts in each case. We deem the notice valid. We are of opinion that the jury could properly say that the foreman was negligent in failing to give the signal to stop the descent of the bucket when or after he directed the workmen to ascend the ladder. For such negligence the employer is hable. (Labor Law, § 200, as amd. supra.) The judgment should he reversed and a new trial granted, costs to abide the event. Jenks, P. J., Carr, Mills and Rich, JJ., concurred. Judgment reversed and new trial granted, costs to abide the event.