Logerto v. Cent. Bldg. Co.

• Decision Date: 26 April 1910
• Citation: 198 N.Y. 390,91 N.E. 782
• Parties: LOGERTO v. CENTRAL BLDG. CO.
• Court: New York Court of Appeals Court of Appeals

198 N.Y. 390

91 N.E. 782

LOGERTO

v.CENTRAL BLDG. CO.

Court of Appeals of New York.

April 26, 1910.

Appeal from Supreme Court, Appellate Division, Second Department.

Action by Frank Logerto against the Central Building Company. From a judgment of the Appellate Division, Second Department (129 App. Div. 922,114 N. Y. Supp. 1134), affirming a judgment entered upon the verdict of a jury at a Trial Term in favor of plaintiff, defendant appeals. Reversed and new trial granted.

See, also, 129 App. Div. 891,113 N. Y. Supp. 1137; 125 App. Div. 933,110 N. Y. Supp. 1135; 124 App. Div. 927,109 N. Y. Supp. 1136.

John C. Robinson, for appellant.

Thomas J. O'Neill, for respondent.

CULLEN, C. J.

This action was brought under the employer's liability act (Laws 1902, c. 600). The defendant was engaged in the excavation of a cellar for a large building, and the plaintiff employed as a laborer in that work. The evidence shows that the material excavated was of a hard character, and that the method of work was to undermine the bank to some extent, and then, by bars and sledges, break off and cast down the overhanging material. While engaged in digging under the bank it fell in upon the plaintiff. The plaintiff contended that the accident was due to the negligence of the superintendent, for which, under the employer's liability act, the defendant is made responsible. The notice given under the provisions of that act is as follows: ‘To Central Building Co., 58 Front Street, Worcester, Massachusetts-Sirs: Please take notice that I, the undersigned, on August 17, 1906, while in your employ on your contracting operation near Mt. Kisco, New York, received serious and physical injuries, and that said injuries were caused without any negligence on my part in any wise contributing thereto, but solely by your negligence, in that as my master you failed to furnish me with a reasonable safe place, appliances, ways, works, and machinery in and in connection with which to work, and in that you negligently failed to inspect, keep safe, and safeguard the place, appliances, ways, works, machinery, and apparatus in and in connection with which I was obliged to work, and in that you knowingly employed and retained incompetent foremen and co-workmen to guide, direct, and assist me in the performance of my work, and in that you failed to formulate, promulgate, and enforce proper rules and regulations for the safety of myself and said co-employés, as a result of all of which certain earth, stone, and material was caused and permitted to fall upon and seriously injure me. Yours, etc. [Signed] Frank Logerto.’

To the receipt of this notice in evidence the defendant objected that it did not properly and sufficiently describe the occurrence of the accident, and, the objection being overruled, properly excepted. We think the defendant's objection was well taken. The object of the Legislature in requiring the service of notice as a condition precedent for the enforcement of the increased liability it had imposed on the master is plain. It was that the master should be apprised of the accident within a reasonable time after its occurrence, so that he might examine into the circumstances of its occurrence, ascertain his liability, and, if he denied liability, secure the proper evidence to sustain his defense. For this purpose it is clear that the accident should be so identified that the master's attention is called to the exact occurrence. The statute prescribes that the action shall not be maintained ‘unless notice of the time, place and cause of the injury is given to the employer within one hundred and twenty days * * * after the occurrence of the accident causing the injury or death.’ Section 2. Whatever difference of opinion may exist as to the necessity of stating in the notice the precise negligence of the master on which it is sought to predicate his liability, we think the notice must reasonably describe the accident or occurrence. The statute is meant for the protection of employés and laborers, many of whom, it may be presumed, are deficient in education or illiterate. The statute contemplates that notice be given by the party injured, or by some one on his behalf. Therefore the statement of the accident should not be required to conform to any higher standard than...