Tontiorio v. New York Contracting Co.-Pennsylvania Terminal

Majority

p. 138

Alfonzo Tontiorio, Appellant, v. New York Contracting Company—Pennsylvania Terminal, Respondent.

Second Department,

November 17, 1911.

Headnote

Master and servant—negligence — Employers’Liability Act—notice — cause of injury — offer of proof by claimant.

A notice under the Employers’ Liability Act which states that the servant at a given time and place was injured by the negligence-of his master, and that such negligence consisted of (1) the master’s failure to provide a reasonably safe place to work; (2) failure to provide a competent foreman or superintendent and fellow-workmen; (3) failure to provide and enforce proper rules for the servant’s safety; (4) permitting blasts without notice or proper protection; (5) failure properly to guard the servant from such blasts; (6) negligent conduct of the work at the place of the accident, "by reason of all of which a blast was shot off and I was hit by a rock” and injured is sufficient.

It was the master’s duty in the exercise of ordinary care to do all things reasonably necessary to prevent rocks from falling on the employees after the blasts, otherwise the place where they worked would be rendered defective.

Where the complaint, which alleged only causes of action under the Employers’ Liability Act, was erroneously dismissed on the ground that the notice was insufficient, a new trial will be granted, and this is so although plaintiff’s counsel only offered to prove a cause of injury not covered by the notice of claim or the complaint.

As the court had advised plaintiff that it would not admit any proof it was immaterial what facts plaintiff offered to show.

Appeal by the plaintiff, Alfonzo Tontiorio, from a judgment of the Supreme Court in favor of the "defendant, entered in the office of the clerk of the county of Kings on the 4th day of Novemhér, 1910, upon the dismissal of the complaint by direction of the court at the close of plaintiff’s case on a trial at the Kings County Trial Term, and also from an order entered in

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said clerk’s office on the 28th day of November, 1910, denying the plaintiff’s motion for a new trial made upon the minutes.

Thomas J. O’Neill [L. F. Fish with him on the brief], for the appellant.

James A. Deering [John Conway Toole with him on the brief], for the respondent.

Plaintiff, defendant’s servant, injured by a rock in the course of blasting, states in his complaint that the action “ is instituted under the Employers’ Liability Act,” and was limited thereby to proceed under the statute, but was precluded by the ruling that his notice to the defendant was insufficient. The notice may be paraphrased as follows: “I was on May 25th, 1907, injured [nature and place of injury stated] by your negligence. You were so negligent in the following respects: (1) You did not provide a reasonably safe place to work; (2) you did not provide competent foreman or superintendent and fellow-workmen; (3) you did not provide and enforce proper rules for my safety; (4) you permitted blasts without notice or proper protection; (5) you failed properly to guard me from such blasts; (6) you negligently conducted your work at the place,” “by reason of all of which a blast was shot off and I was hit by a rock ” from the same and injured.

The above is equivalent to a statement that at a given date, and place, where plaintiff was working, a rock hit the plaintiff, and that it so hit him by reason of defendant’s negligence in omitting to do a master’s duty in several particulars enumerated. Way or works at a stated place defective by reason of a rock thrown in blasting by enumerated omissions of the master’s duty, and resulting injury at a given date — such is the notice in substance.' I deepa it sufficient. It was the master’s duty, in the exercise of ordinary care, to do those things reasonably demandable to prevent rocks blasted from falling on the plaintiff, inasmuch as the place where the servant worked would be thereby rendered defective. The rock did fall on the plaintiff. Hence the place became thereby defective. The rock fell, so causing the defective place, because the master

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omitted several of Ms duties. Hence the master was negligent. Such, read in a legal view, is the notice. TMs court is not nicely considering the master’s liability, but passing with suitable liberality upon a notice of the servant’s claimed grounds of such liability, and while the matter could he stated more clearly and explicitly, yet the facts, as plaintiff asserts them, are told in language which, although general, carries a notification of the accusation against the master.

The complaint amply covers the case as stated in the notice, and the plaintiff should have been allowed to introduce evidence to prove his cause of action as alleged. But as this was denied him, he stated what he would prove. This he was not legally entitled to do, and the court discouraged rather than approved such course. The cause of injury of which he tendered proof is not covered by the notice of claim, for in its general scope it was an offer to prove injury by reason of the negligence of one exercising supermtendence, of which there is no suggestion in the notice. It is true that the acts of the superintendent as stated in the offer would be some evidence competent, but may be, not sufficient evidence of incompetency;" but the whole tenor of the offer does not indicate that such issue was presented. However, I regard the offer of proof as immaterial. The plaintiff had been advised that the court would not admit “ any proof.” The offer did not affect the defendant’s rights and could' not, and it is just that the plaintiff should have equal standing and be permitted upon a new trial to introduce evidence in accord with the notice and complaint.

The judgment and order should be reversed and a new trial granted, costs to abide the event.

Jenks, P. J., Burr, Carr and Woodward, JJ., concurred.

Judgment and order reversed and new trial granted, costs to abide the event.