Fourth Department, May, 1909.

[Vol. 132. were going to throw the additional cars in. Apparently they did not know he was there. They did not intend to injure him. Possibly they were chargeable with notice that he was there. He was accustomed to be there inspecting cars designed for the New York Central road. The yardmaster saw him when he came and told him where the cars were placed that day for his inspection. Though the question is close I would not want to hold that it was error to submit to the jury the question of the defendant's negligence.

Second. More serious questions are presented as to contributory negligence.

The plaintiff knew how the business was accustomed to be done there, that cars were liable to be put in on the track where he was at work at all times of day. He knew that cars were actually put in on that track close to the cars he was inspecting while his work was being done. He knew that no flag or other notice was put up indicating that he was there at work, and he did not personally notify the crew who were engaged in putting cars on the track at the time that he was there, and they should be careful about moving the cars so as not to injure him. He saw cars in close proximity to him just put in, and yet he did not look to see where the engine was or if it was liable to push the seventeenth and eighteenth cars together while he was between them. I do not see under these circumstances how it could be claimed he was free from contributory negligence as it is legally defined.

The trial court in submitting this question to the jury used only the most general language. It did not call attention to any specific things which might be considered as bearing upon this question, such as failure to give notice to the train crew that he was there at work, his knowledge that cars were put in there while he was at work and his failure to look out for the engine or the movement of It seems as though, had there been some specific attention called to these things, the jury would not have gone wrong as they did on this question. Whatever counsel may have said to the jury in summing up, they did not ask the court to give any specific directions to the jury to lead their minds in the proper direction on this question.

the cars.

It will hardly do to say the plaintiff might excuse himself for

Fourth Department, May, 1909.

App. Div.] his total want of care as to his personal safety by assuming the train crew would not back cars against those he was inspecting even though they were putting cars on the track while he was at work. It was his duty to look and see where the engine was, what it was doing and to notify the crew he was there at work, and request them to be careful not to push the cars against those he was at work upon.

Third. There was no question of assumed risk, properly so called, in the case. That applies only between employer and employee, and this was not such a case. What plaintiff knew of things as they existed in defendant's yard and the manner in which the business was there transacted bears only upon the question of contributory negligence.

Fourth. There is no occasion to examine questions relating to the admission or exclusion of evidence, or requests to charge, as we conclude that the evidence bearing upon the question of contributory negligence was not sufficient to warrant a finding by the jury that the plaintiff was free from such negligence.

Such a finding was certainly contrary to the evidence if not entirely without evidence to support it.

All concurred, except SPRING and ROBSON, JJ., who dissented. Judgment and order reversed and new trial ordered, with costs to appellant to abide event, upon questions of law and fact.

HOWARD R. ENGLISH, an Infant, by MILTON T. MYERS, His Guardian ad Litem, Respondent, v. MILLIKEN BROTHERS, INCORPORATED, Appellant.

Fourth Department, May 5, 1909.

Master and servant — injury by fall of truss-negligence of foremanwho is superintendent - notice.

A superintendent stands in the place of and represents the employer, and the latter cannot allege that it is free from negligence when the superintendent neglects to replace a defective appliance with one in proper condition from a supply provided by the employer.

Plaintiff was injured while in defendant's employ by the fall of a steel truss, and in an action for damages the question litigated was whether the hook on the

Fourth Department, May, 1909.

[Vol. 132. chain used to hoist the truss was defective or whether it was perfect but carelessly adjusted. There was a supply of chains in proper condition on hand. Plaintiff was one of several men engaged in raising the truss, and the man who was directing the work at the time and was at least the foreman of the gang, knew or should have known that the hook was defective, if such were the case.

The trial court, ruling that the foreman was not a superintendent and that a recovery could not be had for his negligence under the 2d subdivision of section 1 of the Employers' Liability Act, charged the jury that a recovery might be had under the 1st subdivision of said section if the jury found the facts with plaintiff, but added a qualification to the effect that there could be no recovery for the foreman's negligence even though he was intrusted with the duty of seeing that the chain was in proper condition, if the employer had furnished an adequate supply of chains in a proper condition, and the foreman had neglected on discovery to replace the defective chain with one free from defects. Plaintiff duly excepted to the qualification, the court later, upon the jury returning for instructions, made the charge so clear that no one could mistake it, and the verdict was rendered in defendant's faver. Held, that the question of whether or not the foreman was a superintendent within the meaning of the Employers' Liability Act should have been submitted to the jury;

That, as there was serious doubt as to the correctness of the qualification of the charge under subdivision 1 of said section, and as it could not have been prop. erly charged if the case had been submitted to the jury under subdivision 2 of said section, the case had not been submitted as favorably for plaintiff as it should have been, and an order granting a new trial will be affirmed.

A notice under the Employers' Liability Act should state the time, place and cause of the injury, and its object is to enable the employer to investigate the claim intelligently.

APPEAL by the defendant, Milliken Brothers, Incorporated, from an order of the Supreme Court, made at the Ontario Trial Term and entered in the office of the clerk of the county of Ontario on the 8th day of July, 1908, granting the plaintiff's motion for a new trial made upon the minutes after a verdict rendered by a jury in favor of the defendant.

· Frank J. O'Neill, for the appellant.

E. A. Griffith, for the respondent.

WILLIAMS, J.:

The order should be affirmed, with costs.

The action was brought to recover damages for personal injuries alleged to have resulted from defendant's negligence. The jury

App. Div.]

Fourth Department, May, 1909.

rendered a verdict for defendant. The motion was based on all the grounds specified in section 999 of the Code of Civil Procedure, and was granted without in the order specifying any particular ground.

An opinion was written by the trial justice in which he placed his decision upon an alleged error in his charge, in that he held, as matter of law, that one Fitz Herbert, who was directing the work at the time of the accident, was not a superintendent, nor exercising acts of superintendency, under the Employers' Liability Act, and refused to submit those questions to the jury, and that, therefore, the case was not submitted to the jury upon a proper theory. The plaintiff was injured while in defendant's employ by the falling of a heavy steel truss upon him. Several men were engaged in raising the truss, and Fitz Herbert was at least the foreman of the gang.

First. The plaintiff claims that the accident was the result of a defective hook upon a chain being used, while the defendant claims that the accident resulted from the careless adjustment of a perfect hook, one free from any defect. The jury was instructed to determine which of these two claims was correct, whether the hook was perfect or defective. If it was merely a matter of careless adjustment, there could be no recovery at all. Plaintiff's right to recover involved a finding that the hook was defective, and that such defect caused the accident, and then the question arose whether the defendant was guilty of negligence in the use of such defective hook. The defendant was a corporation. It had a superintendent, Dunning, who was not present at the time of the accident. Fitz Herbert was there, and was apparently the only person in charge of the work, and giving direction as to how it should be done. The defect alleged was that the hook in its perfect condition had a space of only one and one-half inches between the point and the body of the hook, and at the time of the accident it had been sprung so that the distance between the point and the body of the hook was two inches. This condition was not shown to have existed longer than a half hour before the accident, but during that time it was claimed that this defective condition was the subject of conversation between the men, and that Fitz Herbert knew, or should have known, of its condition before he directed its use when the accident occurred. this was true, then he was negligent in permitting and directing the use of this chain, and the question is whether his negligence was

If

Fourth Department, May, 1909.

[Vol. 132. chargeable to the defendant. It is just this point we are interested in here, the relation between Fitz Herbert and the defendant. There are two subdivisions of section 1 of the Employers' Liability Act (Laws of 1902, chap. 600). In substance the section provides for a right of action by an employee against his employer for the negligence of another employee, the same as though the plaintiff had not himself been an employee under subdivision 1, where the employee guilty of negligence is a person intrusted with the duty of seeing that the ways, works or machinery are in proper condition, and under subdivision 2, where such employee guilty of the negligence is a person intrusted with and exercising superintend ence, as his sole or principal duty, or acting as such superintendent with the authority or consent of the employer, in the absence of the principal superintendent.

Now the trial court held that Fitz Herbert was not a superintendent, and that a recovery could not be had for his negligence as such under the 2d subdivision of section 1 above referred to, but he did charge the jury that a recovery might be had under the 1st subdivision if they found the facts with the plaintiff.

In making this charge, however, the trial court added a qualification to the effect that there could be no recovery for Fitz Herbert's negligence, even though he was intrusted with the duty of seeing that the chain was in a proper condition, if the employer had furnished an adequate supply of chains in a proper condition, and Fitz Herbert had neglected on discovery that the chain being used was defective to replace it with a chain free from defect from the supply on hand. This qualification was excepted to by the plaintiff.

I have serious doubt as to the correctness of this qualification charged under the 1st subdivision of section 1, but certainly if the court had submitted the case under the 2d subdivision, no such qualification could have been properly charged. As superintend ent he stood in the place of and represented the employer itself, and the latter could not allege that it was free from negligence, when from its own abundant supply of chains it neglected to replace a defective one with one in proper condition. (Connolly v. Hall & Grant Construction Co., 192 N. Y. 182.)

The case was not, therefore, submitted to the jury as favorably to