Nappa v. Erie R.

On the afternoon of November 25, 1904, the plaintiff, a freight handler in defendant’s employ, was assisting in unloading barrels from a freight car into a freighthouse. The barrels were rolled over an iron skid or running board, about three feet square, one end of which was placed on the floor of the car and the other on the platform of the freighthouse. Usually the skid was secured by nailing a wooden cleat on the platform at the ehd of the skid, but upon this occasion that was not done, and the skid was not secured in any way. It fell while the plaintiff was standing with one foot on the skid and the other on the platform, engaged in his work, and he fell with it, a barrel falling against his leg, and he was hurt.

The plaintiff seeks to recover damages for the injuries thus sustained. A notice was served so as to bring the case within the provisions of the Employer’s Liability Act, now embodied in the Labor Law (Consol. Laws 1909, c. 31, §§ 200-204). The nature of the notice will be more fully stated hereafter. The case has been twice tried. On the first trial the plaintiff had a verdict. The judgment entered thereupon was, on appeal, affirmed by this court ( 123 App. Div. 915 , 108 N. Y. Supp. 1141 ), but the Court of Appeals reversed the judgment and ordered a new trial. 195 N. Y. 176 , 88 N. E. 30 , 21 L. R. A. (N. S.) 96 . Upon the second trial, at the close of the plaintiff’s case, a nonsuit was granted, and from the judgment entered thereupon and the order denying the plaintiff’s motion for a new trial, the plaintiff appeals.

Upon the first trial the case was submitted to the jury upon the theory that the insecure skid was such a defect as might bring the case within the provisions of the Employer’s Liability Act, but the Court of Appeals heldl that the skid and cleat, moved by workmen from car to car, were -no part of the ways, works, or machinery, within the meaning of that act, nor of the safe place to work at under the common law, but tools and appliances furnished the freight handlers, and if one was injured by the negligent act of another in using the same it would be a risk of the employment, imposing no liability upon the master, and that the defendant was entitled to have charged, as it in substance requested, that the use of the skid and cleat was a mere detail of the work, and not covered by the Employer’s Liability Act.

[f] It is now contended on behalf of the plaintiff that there was negligent superintendence in directing the men to work upon the insecure skid. But the defendant insists that the former appeal necessarily involved that question, and that it was passed upon by the Court of Appeals adversely to the plaintiff. I am of the opinion that the-

It appears that one car had been unloaded. The skid was then moved from that car and placed in position for unloading the car in question. The cooper, who was around the freighthouse, usually secured the skid. He carried the hammer, nails, and cleat. He was called by the workmen upon this occasion to secure the skid, first by the foreman or boss, as he is called by the witnesses, and then several workmen called to him; but he did not come. Thereupon the foreman told the workmen to go ahead with their work, saying, according to the testimony of the witnesses, that bye and bye the cooper would come and fix the skid. While this was taking place, the plaintiff was absent getting a drink of water. He returned and went to work with the other men. The skid was not secured; it fell, andl the plaintiff was hurt, as has been stated.

[2] Although the insecure skid was not a defect in the ways, works, or machinery, and the moving and securing of the skid was a mere detail of the work, as has been held by the Court of Appeals, the defendant may still be liable, if the foreman was negligent in superintending the work by directing the men to work upon the skid, knowing that it was insecure.

[3] I think the evidence sufficient to make out a case of negligent superintendence. Guilmartin v. Solvay Process Company, 189 N. Y. 490 , 82 N. E. 725 .

[4] But it is further contended, upon the part of the defendant, that the notice served is insufficient to hold the defendant liable for negligent superintendence under the Labor Law. The statute requires the notice to state the time, place, and cause of the injury. Labor Law, § 201. The notice states that the injuries were caused—

“by the falling of the platform or skid on which said Frank Nappa was then standing, causing him to fall and precipitating a barrel of sugar upon him, and that the falling of s,aid platform or skid was caused by the unsafe and improper manner in which it was placed and secured, and that said platform or skid was furnished by you and your superintendent as the way and place for said Frank Nappa to use in his work, and that it was the duty of you and your superintendent to have provided a safe and proper way and place for said Frank Nappa to work. This you and your superintendent neglected to do, and you are hereby notified that the said Frank Nappa has a claim against you for five thousand dollars ($5,000.00) for the injuries sustained by him, under the statute in such cases made and provided, and by reason of such negligence as aforesaid.’’

The judgment and order should therefore be reversed and a new trial ordered, with costs to the appellant to abide the event. All concur, except McLENNAN, P. J., and FOOTE, J., who dissent upon the authority of the decision in same case on former appeal, reported at 195 N. Y. 176 , 88 N. E. 30 , 21 L. R. A. (N. S.) 96 .