Connor v. Acme Engineering & Contracting Co.

Majority

p. 518

John Connor, Appellant, v. The Acme Engineering and Contracting Company, Respondent.

Third Department,

December 28, 1911.

Headnote

Master and servant—negligence — Employers’Xiability Act — notice — injury by unguarded set screw — erroneous nonsuit.

A verification added at. the end of a notice given under the Employers’ Liability Act is properly a part .thereof and the signature of the claimant at the end of the verification is a sufficient signing of the notice.

Where in an action under the Employers’ Liability- Act to recover for injuries caused by an unguarded set pin it appears that plaintiff was obliged in the course of his duties to climb upon a centrifugal pump several times a day while it was in motion to oil it, and that on the day of the accident as he was descending from the pump he came in contact with the set pin which formed part of the piston rod and was injured, and it further appears that the light was not good and the pin could not be seen, it is error to dismiss his complaint, as matter of law.

It is for the jury to say whether the set pin was properly guarded as required by section 81 of the Labor Law and whether defendant had used reasonable care to make the place in which plaintiff worked reasonably safe.

Appeal by the plaintiff, John Gonnor, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Schenectady on the 1st day of June, 1911, upon the dismissal of the complaint by direction of the court at the close of plaintiff’s case on a trial at the Schenectady Trial Term.

James J. Barry [James A. Leary of counsel], for the appellant.

Catlin & Turner [Edward Schoeneck of counsel], for -the respondent.

The plaintiff while in the defendant’s employ was running a centrifugal pump, and it was necessary for him several times a day to oil it while in motion.' To put oil in the lubricator it was necessary to climb on top of the pump. A steel set pin,

. which connects the piston with the shaft, projected about, two inches and was unguarded. Plaintiff had oiled the pump, and

p. 519

in getting down from it was hit by this set pin and injured. The light was not good and the shaft was revolving rapidly, and when in that motion the pin could not be seen.

The complaint alleged, among other things, that the plaintiff’s foot was caught by the set pin or plug which formed a part of the piston rod and the crank shaft of the centrifugal pump, and a failure to cover or protect the wheels, gearing, set pin and other dangerous parts of the machinery on and about the centrifugal pump. A notice under the Employers’ Liability Act (Labor Law [Consol. Laws, chap. 31 [Laws of 1909, chap. 36], art. 14, as amd.) was served, containing, among other things, substantially the same allegation.

The court granted the motion for nonsuit, holding that the notice served was not signed by the plaintiff and could not, therefore, be considered; that the plaintiff must rely upon a common-law liability and had failed to establish one. The notice served was entitled, “ Supreme Court, Schenectady County. John Connor vs. The Acme Engineering and Contracting Company,” and stated that the undersigned gives notice, etc., and, after stating the accident and its causes, demanded that $10,000 be paid to his attorney, James J. Barry, 469 State street, Schenectady. The notice was typewritten upon two pages of typewriting paper. The demand occurred at the end of the typewritten part, at about the middle of the second page. The cover, such as is often used by attorneys, was attached to the two sheets and held them together. On the first page of the . cover was a printed form of verification which was filled out and signed by John Connor, the claimant, and sworn to by him. Upon the back of the cover was the filing: “ Supreme Court, John Con-nor vs. The Acme Engineering and Contracting Company, Notice of Injury, James J. Barry, Attorney for John Connor, 469 State St., Schenectady.” If the notice is insufficient because not signed, it arises from the fact that the verification was added to the notice and signed by the claimant. I think the verification is properly a part of the notice, and the notice was signed within the fair meaning of the act. The plaintiff was, therefore, entitled to have his action treated as one under the Employers’ Liability Act.

p. 520

From the position of the set pin and the duty of the operator of the pump frequently to climb upon it in close proximity to this pin while the pump was in rapid motion, a fair question Was presented for the jury whether, or not the pin was properly guarded within section 81 of the Labor Law, and whether the defendant had used reasonable care to make the place in which the plaintiff was required to perform his work reasonably safe.. The judgment should, therefore, be reversed and a new trial granted, with costs to the appellant to abide the event.

All concurred.

Judgment reversed and new trial granted, with costs to appellant to abide event.