Impellizzieri v. Cranford

On February 13, 1907, defendant was engaged in making excavations for the purpose of sinking the railroad tracks of the Brighton Beach Road. In connection with the work a steam shovel was employed. A long arm projected from the front of the machine,, which could be raised and lowered or turned from side to side. At its extreme end there was a heavy bucket. At the rear of the machine was a driving engine, which ran upon rails temporarily' laid for the purpose. As the work progressed and all of the material within reach of .the projecting arm had been removed, the rails in the rear were taken up and placed in front of the machine and the machine moved forward. A gang of eight or ten men were employed to operate this machine, one of whom was the engineer, another the fireman, a third known as the “craneman,” and the others constituted the shovel gang. Plaintiff was one of this gang. At the time of the accident it became necessary to smooth down the earth in front of the machine, and relay the rails so that it could be moved forward, and plaintiff was thus engaged. The arm of the machine, with the bucket at the end, was raised to the height of about eight feet from the ground. A- wire rope, which passed over a sheaye at the extreme end of the arm, had slipped off, and was resting upon the axle,' and the craneman, together with the fireman, were directed to climb up on this arm and replace the rope. While they were thus engaged the arm suddenly descended and the 'bucket struck plaintiff, producing injuries, to recover for which this action is brought.

The evidence is not clear as to the cause of the change in the position of this arm. The fireman testified that, as he was climbing up, his foot struck a lever, and as the result of this it descended. There was some evidence that the lever referred to in his testimony had no effect upon the arm of the machine, so far as causing it to rise or fall was concerned, that its only purpose was to move it from right to left in a horizontal or nearly horizontal direction, and that the only mechanism which could cause the arm to descend as it did was in the cab of the engineer, and was controlled by him alone. The learned trial court submitted to the jury the question as to the cause of the descent of the arm, instructing them that, if it was due to the act of .the engineer, the jury might find the defendant responsible for the happening of the accident. A verdict was rendered for plaintiff, and from the judgment entered on such verdict this appeal is taken.

The complaint alleged the service of a notice under the employer’s liability act (Consol. Laws, c. 31, § 301), and the receipt of such a notice was admitted. The learned trial court, however, excluded it when offered in evidence, upon the ground that it was insufficient under the statute. In this we think the court erred. The notice contained a sufficiently accurate statement of the physical cause of the injury, and, although it failed to specify the particular violation of the master’s duty out of which the negligent cause of the injury arose, this, was not a fatal defect. Valentino v. Garvin Machine Co., 139 App. Div. 139 , 123 N. Y. Supp. 959 . Notwithstanding this error, this .judgment must be sustained, if at all, upon,.the ground that a common-law liability has been established. Where an action has been