Frank S. Otway, Respondent, v. Snare & Triest Company, Appellant

Frank S. Otway, Respondent, v. Snare & Triest Company, Appellant. Second Department, April 16, 1915. Master and servant—negligence — injury by swinging bucket — res ipsa loquitur — employment of plaintiff by defendant — when issue for jury — Employers’ Liability Act — notice to corporations other than defendant — amount of verdict. Where it appears without contradiction in an action for negligence that it had been the practice to relatch buckets used for conveying concrete after they had discharged their contents and before hoisting them, so that any remnants of the concrete might not fall therefrom, but a superintendent in charge of the work ordered that this custom be abandoned, with the result that, owing to its increased tendency to swing, an unlatched bucket while being hoisted struck and injured the plaintiff, an employee, the proof standing alone justified the jury in finding negligence. An issue as to whether the plaintiff was in the employ of one or two defendants is for the jury, and is not to be determined solely by papers introduced by the defendant. On this issue the jury may consider how the plaintiff had been hired, the office buildings bearing the defendant’s business sign, and the initials cut in the tools in use as bearing upon the defendant’s actual relation as an employer. The fact that the plaintiff, in addition to service upon the defendant, served the notice of injury under the Employers’ Liability Act upon three other corporations having relations with the execution of the work, did not invalidate the notice as to the defendant where it had not been misled thereby. A verdict of $3,700 for permanent injuries to the head, nose and eyes causing double vision, is not excessive. Appeal by the defendant, Snare & Triest Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Queens on the 17th day of April, 1914, upon the verdict of a jury for $3,750, and also from an order entered in said clerk’s office on the 15th day of April, 1914, denying the defendant’s motion for a new trial made upon the minutes. Hector M. Hitchings, for the appellant. Edgar Weaver [John P. Lamerdin with him on the brief], for the respondent. [MAJORITY — Per Curiam:] Per Curiam: The negligence for which plaintiff recovered was that by a superintendent. The buckets in which the concrete was let down into the cofferdam dumped their contents upon being unlatched. But as some of the concrete would adhere it had been the practice to right and relatch the emptied bucket before hoisting it up. To save delay in the course of this work the superintendent changed the practice so established, and had directed that the emptied bucket be forthwith hoisted unlatched. This increased its tendency to swing. Plaintiff, who was standing on the crossbracing above the bucket, had not been told of this change and was struck in the face by the bucket’s sudden oscillation as it rose. The facts of this accident, standing uncontradicted, justified the jury in finding negligence. Whether the defendant corporation was plaintiff’s employer in fact, instead of the Metropolitan Bridge and Construction Company, was an issue not to be determined solely by the papers introduced by the defense. The jury could consider how plaintiff had been hired, the office buildings bearing defendant’s business sign and the initials cut in the tools being used, as bearing on defendant’s actual relation as an employer. The trial court rightly refused to set aside a verdict for plaintiff thus supported. (McCherry v. Snare & Triest Co., 130 App. Div. 241; affd., 198 N. Y. 532; McKenna v. Snare & Triest Co., 147 App. Div. 855; Summo v. Snare & Triest Co., 166 id. 425.) Neither was the notice of injury invalid because addressed to three corporations besides the defendant. The city of New York owned this bridge. It contracted for its erection with the Maryland Steel Company. When hut six or seven days were left in which to give the statutory notice, plaintiff, for greater caution, addressed it to the Maryland Steel Company, the Snare & Triest Company, the Metropolitan Bridge and Construction Company, and to the city. It stated a- “ claim against you and each of you for money damages for personal injuries sustained by him on April 21, 1908, while in your employ at the New Blackwell’s Island Bridge approach,” etc. As the notice reached this defendant, who was duly named therein and has now been found by the jury to be the employer in fact, and was served in time, it should not fail because of the precaution (which is not shown to have been to mislead) to include others whom at the time plaintiff supposed the proofs might possibly connect with the acts of this superintendent. We cannot hold that the verdict was excessive, in view of the evidence of the serious and lasting injuries to plaintiff’s head, nose and eyes, with resulting double vision, which testimony to such physical hurts stands uncontradicted. After careful consideration of the other objections urged on behalf of the appellant, we find no sufficient ground to disturb the judgment. The judgment and order are, therefore, affirmed on the law and on the facts, with costs. Present — Jenks, P. J., Thomas, Carr, Stapleton and Putnam, JJ. Judgment and' order unanimously affirmed on the law and on the facts, with costs.