Wellman, Gooch Smyth (Roderic Wellman and Frederic C. Scofield, of counsel), for appellant.
Fraser Henschel (Emanuel Fichandler, of counsel), for respondent.
Plaintiff sues to recover damages for an injury which he claims he sustained through the negligence of the defendant. The plaintiff was in the employ of the defendant and was instructed by the foreman to move a piece of concrete. The plaintiff and his companion picked up the piece of concrete and while carrying it the piece which his companion held broke causing the concrete to fall on the plaintiff's fingers. Clearly these facts establish no cause of action at common law. Kalbach v. Ross, 145 A.D. 55; Beichert v. Reed, 20 id. 635; Hussey v. Coger, 112 N.Y. 614.
The respondent claims that, even though he has no common law action, he can sustain his judgment under the Employer's Liability Act. The difficulty in the way of sustaining this contention is that the plaintiff is limited to proving that the accident happened from one of the causes enumerated in the notice. Carron v. Standard Refrigerator Co., 138 A.D. 723.
The notice alleges that "the other man let the heavy concrete slip out of his hands," (1) "owing to the fact that he was hurried;" (2) "owing to the fact that there were beams and pieces of wood and other materials over which he tripped;" (3) "and also owing to the fact that the said piece of concrete was too heavy and clumsy for two men to carry."
The evidence shows that the accident did not arise from any of the causes assigned. The accident happened from the fact that the concrete broke. This fact alone established no cause of action in the plaintiff.
GUY and GERARD, JJ., concur.
Judgment reversed and new trial ordered, with costs to appellant to abide event.