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Deon v. McClintic-Marshall Construction Co.

114 N.Y.S. 28 Court N.Y. App. Term Decision date 1909-01-08 English

Delivered by BISCHOFF, J.

Contents

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p. 28
DEON v. McCLINTIC-MARSHALL CONST. CO.
(Supreme Court, Appellate Term.
January 8, 1909.)

Headnote

1. Master and Servant (§ 201[1] )—Injuries to Servant—Proximate Cause.
Plaintiff was injured by the act of another employé, ordered by a foreman whose sole duty was that of superintendence. Held that, while the proximate act was that of the employé, the proximate cause of the injury was the negligent direction of the foreman.
[Ed. Note.—For other cases, see Master and Servant, Cent. Dig. § 533; Dec. Dig. § 201.[1] ]
2. Master and Servant (§ 252[1] )—Injuries to Servant—Notice of Injury.
An objection to a notice, issued under the employer’s liability act, for insufficiently designating the place of the accident, is untenable, where it affirmatively appears that the master had actual knowledge as to the place, and was in no way misled by the informality of the statement in the notice.
[Ed. Note.—For other cases, see Master and Servant, Cent Dig. § 806; Dee. Dig. § 252.[1] ]
Appeal from Municipal Court, Borough of Manhattan, First District.
_ Action by Arthur Deon against the McClintic-Marshall Construction Company. Judgment for plaintiff, and defendant appeals. Affirmed.
Argued before GILDERSLEEVE, P. J., and BISCHOFF and guy, JJ.
Frank V. Johnson (Allan E. Brosmith, of counsel), for appellant.
Harry J. Sondheim, for respondent.

From the testimony as to the manner in which the accident happened, the negligence of the foreman was apparent, in that he personally ordered another employé to release the chain at the top of the column while the plaintiff was descending, with the natural result that the chain fell and struck the plaintiff. Doubtless the proximate act was that of the servant who released the chain; but he simply obeyed the foreman’s orders, and the proximate cause of the injury was the negligent direction thus given. This foreman was not a mere fellow laborer, as in Abrahamson v. Gen. Supply Co., 112 App. Div. 318 , 98 N. Y. Supp. 596 . His sole and actual duty was that of superintendence, according to evidence which the trial court could properly accept, and so far as the appellant assails the sufficiency of the notice under the employer’s liability act (Laws 1902, p. 1748, c. 600), in the matter of the designation of the place of the accident, the ground of objection is untenable, since it affirmatively appeared that the defendant had actual knowledge of this detail, and was in no way misled by the informality of statement. Heffron v. Lackawanna Steel Co., 121 App. Div. 35 , 105 N. Y. Supp. 429 .

Judgment affirmed, with costs. All concur.

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