Simpson v. Found. Co.

• Decision Date: 25 April 1911
• Citation: 201 N.Y. 479,95 N.E. 10
• Parties: SIMPSON v. FOUNDATION CO.
• Court: New York Court of Appeals Court of Appeals

201 N.Y. 479

95 N.E. 10

SIMPSON

v.FOUNDATION CO.

Court of Appeals of New York.

April 25, 1911.

Appeal from Supreme Court, Appellate Division, Second Department.

Action by Patrick Simpson against the Foundation Company. From a judgment of the Appellate Division (134 App. Div. 930,118 N. Y. Supp. 1142), affirming a judgment for plaintiff, defendant appeals. Reversed, and new trial granted.

On the 27th of June, 1906, the defendant was engaged in constructing the foundation for a large building in lower Manhattan, and the plaintiff was in its employ as the foreman of a gang of eight laborers. An excavation, called by the witnesses the ‘pit,’ had been made to the depth of 30 feet and a platform erected therein, 15 feet square and 25 feet high, supported by posts. There was a hopper two feet square in the center of the platform, through which sand and crushed stone were fed to a mixer below in order to make concrete for the foundation of the building. These materials were dumped from the street into the bottom of the pit, from whence they were raised to the platform by an iron bucket moved by a derrick. Beside this platform, but six or seven feet higher and parallel thereto, was another called the ‘engineer's platform,’ on which stood the derrick and an engine to run it. The position of the engineer was 18 feet back from the mixing platform. Six men, under the orders of the plaintiff, filled the bucket at the bottom of the pit, and, when ready, it was raised by the derrick above and over the lower platform, and, after it was dumped into the hopper by a trap in the bottom, it was swung off the platform and lowered into the pit to be refilled. Two of plaintiff's men, standing on the platform, added water and cement as the sand and stone were thrown into the hopper.

Owing to the difference in the height of the two platforms, the place where the engineer stood, the presence of a pile of pig iron on the edge of the engineer's platform next to the other platform and other obstructions, the engineer who operated the derrick could see only a small part of the lower platform, which will now be spoken of as simply the platform. The light was poor. No bell, whistle, or other signal was provided to give notice when the bucket was to be moved, but prior to the night of the accident two signalmen had been employed to notify the engineer how and when to move the bucket, and to warn persons necessarily on the platform so that they could get out of the way. The work went on constantly night and day; three gangs of men being employed in shifts of eight hours each.

The plaintiff had been working as a laborer from 8 in the morning until 4 in the afternoon, but on the night in question, having been promoted to the position of foreman, he began at midnight. He had charge of the work of mixing the concrete, and it was necessary for him at times to be on the platform in order to direct the men there employed, and from there to shout his orders, through the noise of much machinery in operation near by, to his other men at work in the pit. The engineer was not under him nor subject to his orders. For some reason during the night of June 26th and the morning of June 27th there were no signalmen present as there had been on all other occasions while the plaintiff was at work for the defendant. He reached the place shortly before midnight, went into the pit to place his men and give them directions, and while he was thus employed the night superintendent of the defendant shouted to the engineer from a distance to commence moving the bucket, and the engineer answered that he had no signalmen. The superintendent himself then signaled the bucket for two round trips and a part of the third, or until it was raised from the pit to the platform, when he went away, shouting to the engineer to go ahead. At about this time the plaintiff came on the platform, spoke to one of his men, walked to the edge and stooped over, with his back to the bucket, in order to give orders to the men below. At this instant the heavy bucket was moved swiftly and without warning, and striking the plaintiff knocked him off the platform into the pit, injuring him severely. He did not know that the signalmen had been withdrawn.

While there was a decided conflict in the evidence, the facts could have been found as thus stated. The jury rendered a verdict in favor of the plaintiff for $25,000, and upon appeal to the Appellate Division the case was argued twice. On the first argument the court decided to reverse by a vote of three to two, but upon a reargument before the court after a change in its membership the judgment was affirmed by a like vote. 132 App . Div. 375,116 N. Y. Supp. 878; 134 App. Div. 930,118 N. Y. Supp. 1142. The defendant then appealed to this court.Frank V. Johnson, for appellant.

Jeremiah A. O'Leary, for respondent.

VANN, J. (after stating the facts as above).

Through undue zeal on the part of the counsel for the plaintiff this case was overtried, and hazardous chances were taken by inviting rulings, which require a reversal of the judgment. We will call attention to a few of the errors, trusting that upon another trial counsel will realize that the true interest of a client is rarely advanced by a verdict resting on error.

The only specific allegations of negligence set forth in the complaint are that ‘the defendant operated a derrick and bucket which swung, raised and lowered in and about said premises, and, in utter disregard of its duty to the plaintiff, failed to supply a sufficient number of servants to operate said apparatus; failed to furnish or supply signalmen at various points about said premises to warn plaintiff of the approach of said apparatus or any of its parts; failed to furnish or supply other signalmen or appliances of any kind whatever to warn plaintiff of the approach of said apparatus or any of its parts; failed to supply sufficient electric lights, or any other kind of light in the nighttime to enable plaintiff to see about said premises with reasonable clearness, so that said premises were dark.’ Although these were simply allegations of negligence at common law, the plaintiff also alleged the service of a notice under the employer's liability act (Consol. Laws 1909, c. 31, § 201), but without setting forth any fact to bring the case within the reach of that statute.

Upon the trial the first evidence offered by the plaintiff was a notice claimed to conform to said act. The defendant objected to it as incompetent and immaterial, as having nothing to do with the case and as wholly insufficient in that it did not properly show the cause of the accident or comply with the requirements of the statute. The objection was overruled, an exception taken, and the notice read in evidence. It stated the time and place of the injury with fullness and accuracy, but the only attempt to state the cause of the injury was as follows: ‘Said accident was caused by the failure of the said Foundation Company to provide proper protection for the said Simpson in his employment, and as a result thereof said Simpson was struck by a bucket, which was being used for hoisting purposes, causing him to fall into a pit whereby he sustained serious injury.’

In submitting the case to the jury, the court read sections 1 and 2 of the statute, and charged that ‘this action is brought under this act and this law applies to the evidence in this case and you must apply this law to the evidence.’ The court further instructed the jury to decide whether the defendant provided a safe place and exercised proper care to keep it safe, and refused to charge that there was no evidence to warrant a finding that there was any defect in the ways, works, or machinery furnished by the defendant which in any way contributed to the accident. Exceptions were duly taken to these rulings.

1. The notice did not comply with the employer's liability act because it failed to adequately describe the accident, and did not notify the defendant of any cause of injury that came within the provisions of that statute. It is simply a notice of common-law negligence, which was not required, and is not a notice to bring the case within the enlarged liability imposed by the Legislature. There is no notice of any defect in the condition of the ways, works, or machinery, or of the negligence of any person exercising superintendence with the authority or consent of the employer. It alleges a failure to provide ‘proper protection,’ but does not point out the kind of protection needed, nor the nature of the work in which the plaintiff was engaged, nor ‘indicate what the real, producing trouble in this case was as distinguished from many others which might have existed.’ While it says that he was struck by a bucket and caused to fall into a pit, it does not state what he was doing, why the bucket struck him, where he fell from, or under what circumstances he fell. Upon reading the notice, the employer could not tell whether something broke, or whether the accident was caused by some defect in machinery, or through careless operation, or the failure to give warning, or through any particular act of omission or commission. The allegation of a failure to provide proper protection is too general, for that is simply an allegation of negligence, with ‘no statement which fairly and completely described the cause of the accident,’ as we held was necessary in Finnigan v. New York Contracting Co., 194 N. Y. 244, 248,87 N. E. 424,21 L. R. A. (N. S.) 233. In a later case we said ‘that the accident should be so identified that the master's attention is called to the exact occurrence,’ and that the notice ‘must reasonably describe the accident.’ Logerto v. Central Building Co., 198 N. Y. 390, 394,91 N. E. 782. In that case the notice stated at length all the possible statutory grounds of liability, but the only allusion to the accident or cause of injury was in the statement that ‘as a result of all...