Opinion
December 28, 1911.
James J. Barry [ James A. Leary of counsel], for the appellant.
Catlin Turner [ Edward Schoeneck of counsel], for the respondent.
The plaintiff while in the defendant's employ was running a centrifugal pump, and it was necessary for him several times a day to oil it while in motion. To put oil in the lubricator it was necessary to climb on top of the pump. A steel set pin, which connects the piston with the shaft, projected about two inches and was unguarded. Plaintiff had oiled the pump, and in getting down from it was hit by this set pin and injured. The light was not good and the shaft was revolving rapidly, and when in that motion the pin could not be seen.
The complaint alleged, among other things, that the plaintiff's foot was caught by the set pin or plug which formed a part of the piston rod and the crank shaft of the centrifugal pump, and a failure to cover or protect the wheels, gearing, set pin and other dangerous parts of the machinery on and about the centrifugal pump. A notice under the Employers' Liability Act (Labor Law [Consol. Laws, chap. 31 [Laws of 1909, chap. 36], art. 14, as amd.) was served, containing, among other things, substantially the same allegation.
The court granted the motion for nonsuit, holding that the notice served was not signed by the plaintiff and could not, therefore, be considered; that the plaintiff must rely upon a common-law liability and had failed to establish one. The notice served was entitled, "Supreme Court, Schenectady County. John Connor vs. The Acme Engineering and Contracting Company," and stated that the undersigned gives notice, etc., and, after stating the accident and its causes, demanded that $10,000 be paid to his attorney, James J. Barry, 469 State street, Schenectady. The notice was typewritten upon two pages of typewriting paper. The demand occurred at the end of the typewritten part, at about the middle of the second page. The cover, such as is often used by attorneys, was attached to the two sheets and held them together. On the first page of the cover was a printed form of verification which was filled out and signed by John Connor, the claimant, and sworn to by him. Upon the back of the cover was the filing: "Supreme Court, John Connor vs. The Acme Engineering and Contracting Company, Notice of Injury, James J. Barry, Attorney for John Connor, 469 State St., Schenectady." If the notice is insufficient because not signed, it arises from the fact that the verification was added to the notice and signed by the claimant. I think the verification is properly a part of the notice, and the notice was signed within the fair meaning of the act. The plaintiff was, therefore, entitled to have his action treated as one under the Employers' Liability Act.
From the position of the set pin and the duty of the operator of the pump frequently to climb upon it in close proximity to this pin while the pump was in rapid motion, a fair question was presented for the jury whether or not the pin was properly guarded within section 81 of the Labor Law, and whether the defendant had used reasonable care to make the place in which the plaintiff was required to perform his work reasonably safe. The judgment should, therefore, be reversed and a new trial granted, with costs to the appellant to abide the event.
All concurred.
Judgment reversed and new trial granted, with costs to appellant to abide event.