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Tontiorio v. New York Contracting Co.

131 N.Y.S. 724 Court N.Y. App. Div. Decision date 1911-11-17 English

Delivered by THOMAS, J.

Contents

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p. 724
TONTIORIO v. NEW YORK CONTRACTING CO., PENNSYLVANIA TERMINAL.
(Supreme Court, Appellate Division, Second Department.
November 17, 1911.)

Headnote

1. Master and Servant (§ 252*)—Injury to | Employé—Notice—Sufficiency. I
Notice under the employer’s liability act (Consol. Laws 1909, c. 31, §§ 200-204) is sufficient if it states that on a specified date the complaining employe was injured, the nature and place of injury being specified, through the employer’s negligence; that the ¡employer was negligent in not providing a reasonably safe place to work, in not providing a competent foreman or superintendent and fellow workmen, in not providing and enforcing proper rules for the employe’s safety, in permitting blasts without notice or proper protection, and in failing to properly guard the employe from such blasts; that the work was negligently conducted; and that by reason of all such negligence a blast! was shot off and employe was injured thereby.
[Ed. Note.—For other cases, see Master and Servant, Cent. Dig. § 806; Dec. Dig. § 252.[2] ]
p. 725
2. Master and Servant (§ US*)—Construction Company—Duty to EmPLOYÉ.
A construction company, in using ordinary care, must do those things . reasonably demandable to prevent rocks blasted from falling on an employs.
[Ed. Note.—For other cases, see Master and Servant, Dec. Dig. § US.[2] ]-
3. Master and Servant (§ 252*)—Injury to Employ^—Evidence—Conformity to Notice of Injury.
An employé, suing under the employees liability act (Consol. Laws 1909, c. 31, §§ 200-204) for injury, is not entitled to show injury from negligence not relied upon in the notice of injury.
[Ed. Note.—For other cases, see Master and Servant, Dec. Dig. § .252.*]
Appeal from Trial Term, Kings County.
Action by Alfonzo Tontiorio against the New York Contracting Company, Pennsylvania Terminal. From a judgment dismissing the complaint, and from an order denying a new trial, plaintiff appeals. Reversed, and new trial granted.
Argued before JENKS, P. J., and BURR, THOMAS, CARR, and WOODWARD, JJ.
Thomas J. O’Neill (L. F. Fish, on the brief), for appellant.
James A. Deering (John Conway Toole, on the brief), for respondent.

[1] Plaintiff, defendant’s servant, injured by a rock in the course of blasting, states in his complaint that the action “is instituted under the employer’s 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 25, 1607, 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 deem it sufficient.

[2] 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 omitted several of his du

p. 726
ties. Hence the master was negligent. Such,¡read in a legal view, is the notice. This 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 be stated moré clearly and explicitly, yet the facts, as pljaintiff asserts them, are told in language which, although general, carries a notification of the accusation against the master.

[3] The complaint amphf 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 rhis was denied him, he stated what he would prove. This he was nqt 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 superintendence, 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 maybe 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 proqf as immaterial. The plaintiff had been advised that the court would, not admit “any proof.” The offer did not affect the defendant’s right^, 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, ^nd a new trial granted; costs to abide the event. All concur.