James D. Campbell, Respondent, v. Long Island Railroad Company, Appellant

James D. Campbell, Respondent, v. Long Island Railroad Company, Appellant. Second Department, June 5, 1908. Master and servant—Employers’' Liability Act—warning signal^- act of superintendence question on appeal.' \ The neglect of a superintendent, empowered to employ and discharge men, in failing to set a signal to- warn approaching trains that the track is obstructed by a rope used to lift materials [s an omission to perform an act of ’ superintendence within the meaning of the Employers’ Liability Act. , The point cannot be raised for the first time on appeal that the notice and complaint in an action under the Employers’ Liability Act alleged a specific act of negligence by the superintendent, so that all questions of negligence were narrowed to that act, where the question of his negligence in other particulars was submitted to the jury without objection. Appeal by the defendant, the Long, Island Railroad Company, from a ‘judgment of the Supreme Court in favor of the plain till, entered in the office of the clerk of the county of Kings on the 13th day of February, 1907, upon the verdict of a jury reduced by.stipulation -to $5,000, and also from an order entered in said clerk’s office on the 18tli day of February, 1907,, denying the defendant’s motion for- a new trial made upon the minutes, Frank V. Johnson [Knowlton Durham with him on the brief], for the appellant. James C. Cropsey [J. Brownson Ker with him on the brief], for .the respondent. [MAJORITY — Miller, J. :] Miller, J. : This suit is brought by the plaintiff to recover damages for personal injuries alleged to have been caused by the negligence of his master, the defendant. The defendant appeals from a judgment and an order denying a motion for a new trial. The plaintiff, an ironworker, was employed in the erection of a shed for baggage and express alongside of the defendant’s tracks at Thirty-fourth street, Long Island City. At the time of the accident he was engaged in fastening channel irons to the outer ends of brackets "which projected out over one of the defendant’s tracks which was used as a switch. The channel irons were about fifteen feet long and weighed from 200 to 300 pounds. They were lifted from the ground by means of a rope attached to either end. As the iron was lifted, men on the ground took up the slack. . The plaintiff was sitting on one of the brackets attempting- to fasten an iron which had just been lifted into position, while two men on the ground had hold of the rope, when two cars were shunted onto the track and, passing under the bracket, caught the rope attached to one end of the iron and pulled it with the plaintiff to the ground. One of the men on the ground who had hold of the rope was the superintendent, one McMahon, who employed and discharged the men on this work and directed the manner of its performance. A foreman was employed under him. There was testimony on behalf of the defendant tending to show that it had adopted a rule requiring workmen who were obstructing the track for any purpose to display a red flag, and that if such rule had been observed the cars causing the accident would not have been shunted onto the track. There is some doubt, however, whether said rule plainly applied to the workmen with whom the plaintiff was employed, and there was also evidence on behalf of the plaintiff tending to show that while such a rule was in force on other roads, it had, not been promulgated -to the plaintiff or the men employed with him. The trial court submitted to the jury the question whether McMahon was the superintendent of the men, and whether the accident was caused by his negligence in failing to discharge his duty as superintendent to have a flag placed to give warning. LTo exception was taken to the submission of that question, and the court charged the- jury at the request, of defendant’s counsel that the defendant was not liable for the negligent' handling of the rope by McMahon so' as to allow it to' be caught by the ear, as that Was a detail of the work. The notice served under the Employers’ Liability Act (Laws' of 1902, chap. 600), after specifying various grounds of negligence of the master, stated as follows: “ and also through the negligence and carelessness of the person employed by you and who was entrusted with and actually 'did exercise superintendence over the work which I and other employees were doing and whose sole or principal duty was that of superintending, in 'causing, permitting and .allowing a certain rope which was attached to iron that I was trying to put in place to become caught in or against certain cars that were being operated by your company near the place where I was working and through other negligent and careless acts of your company.” The allegations of negligence found in the complaint substantially followed'the statements contained in the notice. The point is now made for the first time that as the complaint and notice alleged a specific act of negligence on the part of the superintendent, all questions respecting his negligence was narrowed to the single negligent act- stated. But it is unnecessary to consider this question, for the reason that it is nowhere raised, either by appropriate objection to. the admission of evidence or by exceptions to the charge or requests to charge. I think that under the notice and complaint the" plaintiff was entitled to go to the jury at least on the question whether the defendant’s rule, assuming that it applied to the particular situation involved, was properly promulgated to the men.- The defendant, however, acquiesced in the submission of another question to the juryj and cannot complain because that question was not submitted. It is plain that the said McMahon Was a superintendent within the meaning of the statute. It is equally plain that the placing of a flag to give warning would have prevented the accident, as the switchman testified that he called to McMahon before giving the signal to kick tlie cars off, -that McMahon said “ all- right,” and that the witness then said “everything clear,” and gave the signal. The only question involved in the case,, therefore, is whether it was the duty of the superintendent to see that the warning signal was placed. In other words, was that an act of superintendence % That question was fairly submitted to the jury, and they resolved it in favor of the plaintiff. I think that, within recent decisions of the Court of Appeals, the failure to have the flag placed was a negligent omission to perform an act of superintendence. (Harris v. Baltimore Machine & Elevator Works, 188 N. Y. 141; Guilmartin v. Solvay Process Co., 189 id. 490; McHugh v. Manhattan R. Co., 179 id. 378; Gallagher v. Newman, 190 id. 444.) Indeed, the appellant does not seriously question that proposition, and is in no position to question it, having taken no exception to the submission of the question to.,the jury. The other question raised does not require consideration, as it has already been passed upon by this court. The judgment and order should be affirmed. . Present — Woodward, Jerks, Gatror, Rich and Miller, JJ. Judgment and order unanimously affirmed, with costs. ■ i