Smith v. Milliken Bros., Inc

• Citation: 200 N.Y. 21,93 N.E. 184
• Parties: SMITH v. MILLIKEN BROS., Inc.
• Decision Date: 15 November 1910
• Court: New York Court of Appeals Court of Appeals

200 N.Y. 21

93 N.E. 184

SMITH

v.MILLIKEN BROS., Inc.

Court of Appeals of New York.

Nov. 15, 1910.

Appeal from Supreme Court, Appellate Division, Second Department.

Action by James Smith against Milliken Bros. From a judgment entered on an order of the Appellate Division (133 App. Div. 903,117 N. Y. Supp. 285), affirming by a divided court a judgment for plaintiff, defendant appeals. Affirmed.

Frank V. Johnson, for appellant.

Thomas J. O'Neill, for respondent.

HISCOCK, J.

The action is brought under the employer's liability act (Consol. Laws, c. 31) by the respondent against the appellant, his employer, to recover for personal injuries. The latter, at its plant on Staten Island, was engaged in installing and adjusting a large machine with rollers and cogwheels, designed for straightening iron beams. One Miller was the superintendent having general charge of the work, and one Smith was his assistant, having power to give directions to plaintiff and other employes. On the occasion of the accident Smith directed the respondent to readjust a certain screw for the purpose of perfecting the operations of the machine, and while he was engaged in this work, and standing in whole or part on a cogwheel, Smith directed Miller, who was manually operating the lever by which the machine could be set in motion, to ‘go ahead.’ The result was that Miller, obeying this direction or signal, set the machine in motion and respondent was injured.

Counsel for the appellant has advanced several reasons for the reversal of the judgment, to which reply at length has been made by the learned counsel for the respondent, when an inspection of the record discloses that many of them are not presented for our consideration by any exception.

The first of those requiring consideration involves the sufficiency of the notice served under the act in question. When this was offered in evidence no objection was made as now argued that it did not properly state the place of the accident. The only objections which were made, and which require any attention were that the notice was not signed by the plaintiff or any one else in his behalf, but signed in typewriting, and that it did not ‘comply with the requirements as laid down in the decisions, the cause being stated as a general one and not specifically.’ The notice itself has not been presented on the argument and, therefore, we are unaware whether it was signed in typewriting or otherwise, and, furthermore, I do not regard that as material. The fact that the notice was produced by and in behalf of the respondent on the trial of the action is sufficient at least to create a presumption that it was signed by him or in his behalf within the meaning of the statute. The second objection presents a closer question. The notice is not a model in form, and is subject to some of the criticisms which were expressed in Finnigan v. N. Y. Contracting Co., 194 N. Y. 244, 87 N. E. 424,21 L. R. A. (N. S.) 233. I think, however, that on the whole, it is our duty to uphold it. So far as this appeal is concerned it must be regarded as stating with all necessary completeness the time and place and the nature of the injuries received. Then, after considerable circumlocution and allegations of various legal defaults, it does finally state the actual cause and manner of the injury-‘that said injuries were caused * * * solely by your (the appellant's) negligence, * * * in that your foreman having and exercising superintendence over and in connection with me, negligently conducted himself in connection with said acts of superintendence and negligently and without warning started the machine in connection with which I was working, as a result of which I was caught in the gears and received the injuries aforesaid.’ This, I think, apprised the employer with reasonable certainty of the real cause of the accident. The material thing least identified is the machine on which respondent was working and in which he was caught. But with the other details which are given of time and place, I do not regard this lack of definiteness as sufficiently serious to invalidate the notice, within the cases of Bertolami v. United Engineering & Contracting Co., 198 N. Y. 71, 91 N. E. 267;Hurley v. Olcott, 198 N. Y. 132, 91 N. E. 270;Logerto v. Central Building Co., 198 N. Y. 390, 91 N. E. 782.

Both at the close of the plaintiff's case and at the close of the entire case a motion was made to dismiss the complaint and for a nonsuit on various grounds going to the merits of the action. With the consent of the defendant in each instance the ruling on the motion was reserved and the case was generally submitted to the jury. The questions whether Miller, the superintendent who worked the lever, and Smith, the assistant, who gave the directions which resulted in setting the machine in motion, were exercising acts of superintendence within the meaning of the statute were left as questions of fact to the jury and no exceptions were taken to such disposition. Subsequently when the verdict of the jury had been rendered, appellant's counsel moved to set aside the verdict on the various grounds provided in section 999 of the Code of Civil Procedure, and also stated: ‘I * * * renew my motion to dismiss the complaint as previously made and undetermined.’ The court entertained the motion and again reserved its decision and later an order was made denying the motion to set aside the verdict and for a new trial and...