Greif v. Buffalo, L.&R. Ry. Co.

• Decision Date: 09 April 1912
• Citation: 98 N.E. 462,205 N.Y. 239
• Court: New York Court of Appeals Court of Appeals
• Parties: GREIF v. BUFFALO, L. & R. RY. CO.

205 N.Y. 239

98 N.E. 462

GREIF

v.BUFFALO, L. & R. RY. CO.

Court of Appeals of New York.

April 9, 1912.

Appeal from Supreme Court, Appellate Division, First Department.

Action by Catherine Greif, as administratrix of Frederick Greif, deceased, against the Buffalo, Lockport & Rochester Railway Company. From a judgment of the Appellate Division, Fourth Department (145 App. Div. 910,129 N. Y. Supp. 1125), overruling plaintiff's exceptions ordered to be heard in the first instance at the Appellate Division, and directing judgment in favor of the defendant upon the nonsuit granted at Trial Term, plaintiff appeals. Reversed, and new trial ordered.

Wm. F. Lynn, for appellant.

Ernest I. Edgcomb, for respondent.

HAIGHT, J.

This action was brought under the Employer's Liability Act (Consol. Laws 1909, c. 31, §§ 200-204) to recover damages arising from the death of plaintiff's husband, Frederick Greif, an employe of the defendant, resulting from a fall from the top of one of defendant's cars on the 19th day of January, 1909. The plaintiff's intestate entered the employ of the defendant in September, 1908, and for severalweeks prior to the accident he had been assigned to duty as night watchman, car cleaner, janitor of the offices, and occasional helper of Otis J. Carr, the car inspector, whenever he needed assistance in making minor or temporary repairs. The accident happened at the defendant's car barn in the town of Gates, in which the cars not in use were stored during the night and were cleaned, inspected, and, if needed, minor temporary repairs were made. For the purpose of running cars out and into the barn a trolley wire had been provided guarded by an overhead board 12 or 14 inches wide, running lengthwise of the wire with pieces on either side forming an inverted trough. Between 11 and 12 o'clock on the evening of the accident a car was run into the barn, having a trolley pole on each end of the car, one of which was bent so as to require a new pole. Carr, the inspector, called decedent's attention to the fact and said that they would have to put in a new pole and told him to go upon the roof of the car and take the old pole out while he went to get a new one . Thereupon decedent climbed to the top of the car, took the old pole out, and threw it to the ground. Carr returned with the new pole, placed it against the car, climbed to the top, and pulled the pole up after him and laid it across the board on top of the trolley wire and told decedent to hold it. Carr then turned to light a cigarette that he was smoking, and as he again turned to look at decedent he saw him in the act of falling backwards from the top of the car, carrying the pole with him. In striking upon the ground his spine was injured, producing paralysis, which resulted in his death on the 16th day of March thereafter. After the decedent fell it was discovered that his hands were burned and blistered and that there was another burn across his neck.

Prather was the master mechanic of the defendant in charge of the barn and repair shop and employed Carr as his night inspector, whose duties were to take charge of the barn during the night, look after the cleaning of the cars and making minor temporary repairs. At the entrance of the barn there was a switch, by which the electricity could be turned on or off from the trolley wire, which was also in charge of Carr. The master mechanic also employed the decedent and took him to the barn and told Carr that he would help him nights in cleaning and making repairs. Prather, the master mechanic, was not at the barn nights, but during that time Carr was left in charge. On several occasions he had called upon the decedent to help him clean trolley bases, and on each of those occasions to electricity was turned off before doing the work. On the night in question, however, the electricity had not been turned off from the trolley wire, and the car was what was known as a ‘live car.’ Neither Carr nor the master mechanic had ever given decedent any instructions in regard to danger from electricity.

[1] It is now contended that the notice given to the employer of the intention to bring an action under the Employer's Liability Act was defective and insufficient in law; that it failed to state that the plaintiff's intestate exercised due care; that it did not sufficiently state the cause of the injury, and that it did not state the particulars in which the defendant was negligent. The notice was given by the decedent in his lifetime, was addressed to the defendant, and stated: ‘You will please take notice, that on the 19th day of January, 1909, about 11 o'clock p. m., while I was in your employ as watchman and helper at your car barn and repair shop, situate in the town of Gates, west of the city of Rochester, I was injured by falling from the top of a car which was at the time standing in said barn for repairs. The said car was brought into the barn with a damaged trolley pole, and the repairs consisted in taking out that trolley pole and inserting another. The car was run into the barn on a track having a trolley wire over it, and I was sent to the top of the car to make the change of trolley poles. The power, or electric current, is supposed to be turned off from the trolley wire in said barn and from said car at such a time when repairs are taking place. After the old trolley pole was removed, and while I was standing on the top of the car, a new trolley pole was handed to me, and as I attempted to insert it in the socket it touched the trolley wire and I received a shock of electricity, which threw me to the ground, injuring my spine so that I am paralyzed and helpless.’

The statute provides that ‘no action for recovery of compensation for injury or death under this article shall be maintained unless notice of the time, place and cause of the injury is given to the employer.’ Labor Law (Consol. Laws 1909, c. 31) § 201.

Upon referring to the notice it appears that each of the requirements of the statute has been fully complied with, the time and place are given, and that the fall from the car was caused from the shock of electricity which the decedent received while he was attempting to insert the new pole in the socket, and that the fall produced the injury to his spine and paralysis . The provisions of such notice have previously been under consideration in this court, and under our recent decisions we entertain the view that this notice was sufficient. Bertolami v . United Engrg. & C. Co., 198 N. Y. 71, 91 N. E. 267;Martin v. Walker & W. Mfg. Co., 198 N. Y. 324, 329,91 N. E. 798;Smith v. Milliken Brothers, Inc., 200 N. Y. 21, 24,93 N. E. 184.

[2] Under the provisions of the statute it is provided that when personal injury is received by an employe, who is himself in the exercise of due care and diligence, by reason of the negligence of any person in the service of the employer intrusted with and exercising superintendence, whose sole or principal duty is that of superintendence, or in the absence of such superintendent of any person acting as superintendent with the authority or consent of such employer, an action may be maintained against such employer for the damages sustained, etc. In this case the evidence tends to show that...