Peter Fleming, Respondent, v. Ezra B. Tuttle and Others, Composing the Firm of S. Tuttle's Sons & Company, Appellants

Peter Fleming, Respondent, v. Ezra B. Tuttle and Others, Composing the Firm of S. Tuttle’s Sons & Company, Appellants. Negligence —failure of an employer to perform a promise made to an employee to control the flow of coal in a chute which the employee was engaged in freeir^g—proof of injury to the brain under an allegation of injury to the “head, body and limbs and permanently injured.” Evidence that a chute in a coal yard having become clogged with coal, the employee in charge of the chute, after making several unsuccessful attempts to dislodge the coal, reported the matter to one of the owners of the coal yard, who was the superintendent of the yards, and that such owner thereupon directed the employee to take a stick and insert it in the mouth of the chute for the purpose of loosening up the coal, and at the same time promised to take charge of the gate which controlled the flow of coal into the chute and thus prevent the loosened coal from flowing down upon the employee, and that, while the employee was obeying the directions thus given him, he was injured in consequence of the failure of the owner to perform his promise to take charge of the gate, is sufficient to warrant a finding that the owners of the coal yard were guilty of negligence and that the injured employee was free from contributory negligence. Where the complaint in an action to recover damages for personal injuries alleges that the plaintiff sustained injuries to the “head, body and limbs and permanently injured,” it is competent for the plaintiff to show by physicians that the injuries received caused pressure upon and injury to the plaintiff’s brain. Appeal by the defendants, Ezra B. Tuttle and others, composing the firm of S. Tuttle’s Sons & Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 3d day of December, 1903, upon the verdict of a jury for $3,000, and also from an order entered in said clerk’s office on the 12th day of January, 1904, denying the defendants’ motion for a new trial made upon the minutes. Lewis H. Freedmam, [John Notman with him on the brief], for the appellants. Edmund C. Viemeister, for the respondent. [MAJORITY — Woodward, J.:] Woodward, J.: The plaintiff was employed in a coal yard owned and operated by the defendants. A new apparatus for elevating and distributing coal about the yards had been installed about six weeks prior to the accident resulting in personal injuries to the plaintiff, and although several allegations of negligence were made in the complaint, only one question as to the defendants’ negligence was submitted to the jury. It appears by the plaintiff’s testimony, which was the version accepted by the jury, that the coal, which was elevated to a hopper, and from thence passed down through a chute about thirty-five feet long to small cars, had become clogged in this chute. The plaintiff, who was in charge of the operation of the chute, tried several methods of dislodging the coal, but could not make it run. He says that he met Mr. Day, one of the defendants, who was the superintendent of the yards, and told him of the difficulty, and asked for an assistant. Thereupon Day directed the plaintiff to go to the foot of the chute and to take a stick and insert it in the mouth of the same for the purpose of loosening up the coal, at the same time promising on his part to take charge of the gate which controlled the flow of coal in such a manner as to prevent the same from flowing down upon the plaintiff. Acting under these directions the plaintiff went to the foot of the chute, stirred up the coal with a stick, and was about to climb out of the ear which was to receive the coal, when the coal came down with a rush, upset the car and threw the plaintiff to the ground, some eighteen or twenty feet below, where the coal continued to flow down upon him, producing the injuries complained of here. Day denies that he had any conversation with the plaintiff on this occasion, and says: “ I don’t know that I ever attended to a gate in that hopper at all,” so that it is conceded on the part of the defendants that they did not, through Mr. Day, give the plaintiff any protection by controlling the gate, as the latter says Day promised to do. We think under the circumstances that the defendants owed the plaintiff the duty of protecting him while he was engaged in clearing the chute of the clog, a thing that might have been done by operating the gates provided for that purpose, but which could not be closed during the time that the coal remained clogged in the channel. We are also of the opinion that the plaintiff is not to be charged with contributory negligence in going into the car and following the directions of the yard foreman, who w,as one of the members of the firm employing him. The work might have been done in entire safety if Day had performed his agreement and operated the gates in the chute when the coal began moving, and the plaintiff had a right to rely upon this promise. We find no error in the rulings of the learned trial court; the pleadings alleged injuries to the “ head, body and limbs and permanently injured,” and it was competent to show by physicians that the injury received caused pressure upon and injury to the brain. An injury to the head is broad enough to admit of evidence of an injury through the head to the brain, where the result is traced directly to the injury, this being quite different from those cases in which a severe nervous shock is alleged, and an effort is made to show that as a result of such shock heart disease, vertigo, curvature of the spine and other diseases have resulted. (Kleiner v. Third Avenue R. R. Co., 162 N. Y. 193, 201.) The judgment and order appealed from should be affirmed, with costs. Judgment and order unanimously affirmed, with costs.