Rodzborski v. American Sugar Ref. Co. of New York

• Decision Date: 24 February 1914
• Parties: RODZBORSKI v. AMERICAN SUGAR REFINING CO. OF NEW YORK.
• Court: New York Court of Appeals Court of Appeals

210 N.Y. 262

104 N.E. 616

RODZBORSKI

v.AMERICAN SUGAR REFINING CO. OF NEW YORK.

Court of Appeals of New York.

Feb. 24, 1914.

Appeal from Supreme Court, Appellate Division, Second Department.

Action by John Rodzborski against the American Sugar Refining Company of New York. From a judgment of the Appellate Division (151 App. Div. 395,135 N. Y. Supp. 1063), affirming a judgment for plaintiff, defendant appeals. Reversed and remanded.B. L. Pettigrew, of New York City, for appellant.

F. W. Sparks, of Brooklyn, for respondent.

WERNER, J.

[1] The plaintiff, a man of foreign birth and unable to speak English, was injured while in the employ of the defendant. The action is brought to recover damages for the injuries thus sustained. The accident which caused the injuries complained of occurred in the early morning hours of February 5, 1907. According to the plaintiff's account of the occurrence, he was directed by a person who was acting as his superintendent to remove the snow from a large belt, which was used as a conveyor of coal and located in a shed on the roof of one of the defendant's buildings. He testified that while so engaged the conveyor was started, and his right arm was caught between the belt and the pulley around which it revolved at the place where the coal falls into the mouth of a chute. No defect in the machinery or appliances was proven, and the sole negligence on the part of the defendant relied upon to sustain a recovery was the starting of the belt while the plaintiff was at work upon it . The defendant's testimony is to the effect that the machinery was in motion prior to the time when the accident occurred, and that the plaintiff was injured through his own carelessness. Although the plaintiff's evidence is meager and differs radically from that adduced by the defendant, we cannot say that it was not sufficient to justify the jury in finding that there was negligence on the part of the plaintiff's superior in failing to properly guard him against injury, and that the plaintiff was free from contributory negligence. If these were the only questions involved on this appeal, we should, of course, be required to affirm the judgment, notwithstanding the decision of the Appellate Division was by a divided court.

[2] The action is sought to be sustained, however, under the Employers' Liability Act. The defendant denied that the notice required to be given under that act (Labor Law [Cons. Laws, c. 31] § 201) was served upon it. The plaintiff, not having a copy of the notice which he claimed to have served, attempted to give oral proof of its contents. He testified, in substance, that not being able to write, he went to one Laboda, who wrote what was called a notice, and that he took this paper so written by Laboda and delivered it at one of the offices of the defendant. Laboda, testifying for the plaintiff, stated that the paper was in the following form: ‘To the American Sugar Refining Company, Brooklyn. Gentlemen: Kindly investigate the case of John Rodzborski that has been injured on the 5th day of February, 1907, while cleaning a belt in the boiler room, between South Third and South Fourth streets; John Rodzborski has been made a cripple and not able to do any work, and won't be for some time to come.’ The defendant claims that this notice was insufficient in that it does not state the cause of the accident, nor the place thereof, and is not signed. Section 201 of the Labor Law, so far as here material, provides: ‘No action for recovery of compensation for injury or death under this article [employers' liability article] shall be maintained unless notice of the time, place and cause of the injury is given to the employer. * * * The notice required by this section shall be in writing and signed by the person injured or by some one in his behalf, * * * but no notice under the provisions of this section shall be deemed to be invalid or insufficient solely by reason of any inaccuracy in stating the time, place or cause of the injury if it be shown that there was no intention to mislead and that the party entitled to notice was not in fact misled thereby.’

It will be seen that the form of the paper which is here claimed to be a notice in compliance with the above-quoted section resembles a letter asking for charitable aid more than it does a notice; but, if we make a due allowance for the ignorance of the plaintiff and assume that the service of this paper was intended to be a compliance with the statute, it is impossible to say that it states any ‘cause’ of the injury. It refers to an injury sustained ‘while cleaning a belt.’ That is all there is in this so-called notice which can be said to be a statement of the cause of the injury. No one can read this statute without concluding that it contemplates something more than a mere statement of what an injured person was engaged in doing at the time he was hurt. This alleged writing contains nothing to indicate either the physical or negligent cause of the injury. For aught that it sets forth the plaintiff might have been injured by something entirely disconnected with the belt. It is true that an investigation might have disclosed the cause of the injury, but equally probable that it might not have given the slightest intimation of the real cause. No defect in the belt or machinery is claimed, and the defendant might have searched in vain for the cause of the injury. This lack of detail in the notice is not a mere inaccuracy in stating the cause, but an utter absence of the statement of any cause whatever. As was said in Simpson v. Foundation Co., 201 N. Y. 479, 486,95 N. E. 10, 13 (Ann. Cas. 1912B, 321): ‘The statute says that ‘the cause of the injury’ must also be stated, and this means that the accident should be so described that a person of ordinary intelligence who knew nothing about it could understand how it happened.' In that case, as well as in the cases of Finnigan v. N. Y. Contracting Co., 194 N. Y. 244, 87 N. E. 424,21 L. R. A. (N. S.) 233, and Logerto v. Central Bldg. Co ., 198 N. Y. 390, 91 N. E. 782, the notices were more explicit in this respect than the notice in this case, and they were held insufficient.

[3] Counsel for the defendant also contends that the notice claimed to have been served herein was insufficient because it was not signed. Upon that particular point the...