It will be noticed that this notice does not mention any negligent act on the part of a superintendent; that it does not suggest any defect in the ways, works, or machinery. It merely alleges matters which go to make up a common-law cause of action for negligence, and it has no more place in the record in this case than has the Declaration of Independence.

It may be assumed, without discussion, that in pleading a cause of action under the employer's liability act it is not necessary to allege that the negligence is that of the master by his superintendent; that it is sufficient to allege the master's negligence, and to sustain the allegation by showing that it was done or omitted by one discharging the duties of a superintendent; but a very different proposition is presented in reference to the notice which is required by the statute. The purpose of that notice is to inform the master that an accident has occurred for which he is liable under this statute, as no notice is required under the common law. The employé is given an enlarged right of action against the master for the negligent act of a superintendent, or for defects in the works, ways, or machinery; and this enlarged right is given on condition that the employé, within 120 days of the accident, shall give the employer notice, not generally, but specifically, of an act of omission or commission on the part of a superintendent, or of a defect in the works, ways, or machinery. A general notice of negligence, such as might be entirely proper in a complaint, is not notice to the master that an accident has occurred for which he is specially liable. The master, in good faith and fair dealing, if he is to be subjected to a special liability, has a right to be informed of the basis of such special liability-has a 'right to a notice calling his attention to the fact that the accident was due to the negligence of one discharging the duties of a superintendent, or that it was due to a defect in the works, ways, and machinery-to the end that he may investigate the particular facts which are to be relied upon in the action, preserve his evidence, and take such steps as his own interests shall dictate. The enlarged right of action is coupled with a duty on the part of the employé, and there is no hardship in requiring that this condition shall be performed. If the action is one at common law, there is no need of a notice, and a weak cause of action, or a doubtful one, at common law, is not entitled to be bolstered up by a reference to the employer's liability act. It might be that where a notice had been served in good faith, and had been admitted in evidence, and the facts showed purely a common-law action, a charge on the part of the court that the notice had no bearing on the case would cure the error; but to permit the evidence to go in over objection, where the notice itself failed to show any liability under the statute, and then to read the statute, and to tell the jury that they must apply this statutory law to a common-law liability, is to give to the plaintiff an advantage which was not contemplated by the act, and to which in justice he is not entitled.

With this notice in evidence over the defendant's objection and exception, the learned trial justice, in charging the jury, read sub116 N.Y.S.-56

division 1 of section 1, and section 3, of the employer's liability act, to the jury, and charged them that:

"This action is brought under this act, and this law applies to the evidence in this case, and you must apply this law to the evidence."

This portion of the charge was duly excepted to, counsel specifically objecting to the reading of the act, on the ground that it had no application to the issues framed, and asked the court to charge that:

"There is no evidence in this case to warrant a finding that there was any defect in the ways, works, or machinery furnished by the defendant which in any way contributed to this accident."

This was refused, and defendant took an exception. This was clearly error. The notice, as we have seen, had no place in the case, and the law is clear that the provisions of chapter 600, p. 1748, of the Laws of 1902, have no bearing whatever upon a common-law cause of action. It was error, therefore, for the court to charge the jury that they must apply this law to the evidence in this case. See, generally, upon the question, Finnigan v. New York Contracting Co., 122 App. Div. 712, 107 N. Y. Supp. 855; Barry v. Derby Desk Co., 121 App. Div. 810, 106 N. Y. Supp. 575, much in point; Chisholm v. Manhattan Ry. Co., 116 App. Div. 320, 101 N. Y. Supp. 622; Kennedy v. New York Telephone Co., 125 App. Div. 846, 849, 110 N. Y. Supp. 887, and authorities there cited; Mahoney v. Cayuga Lake Cement Co., 126 App. Div. 164, 110 N. Y. Supp. 549; Palmieri v. Pearson & Son, Inc., 128 App. Div. 231, 232, 112 N. Y. Supp. 684, and authorities there cited.

The judgment and order appealed from should be reversed, and a new trial granted; costs to abide the event

MILLER, J. I think this judgment should be reversed, because the case was submitted to the jury on an erroneous theory. In charging the jury, the court stated the claims of the parties substantially as pleaded, made some general observations, read sections 1 and 3 of the employer's liability act, saying, "This action is brought under this act, and this law applies to the evidence in this case, and you must apply this law to the evidence," referred to the master's duty to furnish a safe place and suitable appliances and materials, and to the rule of assumption of risk, and then submitted the following questions to the jury: (1) Did the defendant provide a safe place and exercise proper care to keep it safe? (2) Under all the circumstances of the case, was there any negligence on the part of the master? (3) Did the plaintiff contribute to the happening of the accident? (4) Did the plaintiff assume the risks of his employment? The defendant specifically excepted to the court's charge respecting the application of section 1 of the employer's liability act and the master's duty to furnish a safe place, and to the refusal of the court to charge that there was no evidence to warrant a finding that there was any defect in the ways, works, or machinery.

Neither the rule of safe place nor section 1 of the employer's liability act applies to this case. The master was liable, not for a defect

place in which to work, but, if at all, for not furnishing a signalman. The evidence respecting the light, the absence of bell or other signal, and the obstructions of the engineer's view, only relate to the defendant's duty to furnish a signalman and to the question of the plaintiff's contributory negligence. The defendant's evidence tends. strongly to show that the engineer had a plain view of the men on the platform, and that the signalmen, referred to by the plaintiff's witnesses as present on prior occasions, were there to give warning of the movement of another machine at a different place. The question upon which the verdict should have turned-i. e., whether the engineer had an unobstructed view of the men on the platform-was not suggested by the court to the jury, except in response to a request to charge. In substance, the jury were instructed to apply the employer's liability act to the case, and to say whether the defendant had furnished a safe place, and whether, under all the circumstances in the case, it was guilty of any negligence. A layman might easily conclude that the platform was unsafe from the mere fact that the plaintiff was knocked from it by the derrick. It is true that the failure to furnish a signalman was stated by the court as among the claims of the plaintiff but that was far from stating the precise question for the jury to decide, and the only questions actually submitted were the general ones, as above stated.

A charge confined to a statement of abstract general principles, even if applicable to the case, is more likely to confuse than to aid the jury, and certainly the submission to them of abstract questions not in the case may be presumed to have been harmful. The jury can be expected to decide intelligently only when the precise point to be decided is concretely stated to them. If the main charge fails to instruct them, requests to charge are apt to be futile. A verdict on a sharply contested issue of fact should not be permitted to stand, where the charge is confined to abstract general principles, especially, as here, if they have no application to the case and are excepted to.

I think the learned counsel for the appellant sufficiently raised the point. His brief called attention to the exceptions, with folio references to the record. He argued that the employer's liability act had no application to the case; but, by contending for more than we are deciding, he did not lose the benefit of the proposition which the majority of us agree to, to wit, that section 1 of the employer's liability act does not apply.

JENKS, J., concurs.

GAYNOR, J. (dissenting). The action was for damages for negligence. The defendant was engaged in sinking deep caissons for the foundations of a large building in lower Manhattan. The plaintiff was foreman of a gang of eight men engaged in the work. The accident to him happened about midnight. The work was being done by electric light. There is evidence that the light was dim at the place where the plaintiff was hurt, and to the contrary. The excavation was 30 feet deep. In it was a platform 15 feet square, and 25 feet above the bottom, supported by upright timbers. In the centre of it was

a chute or hopper 2 feet square, which fed a concrete mixer under the platform. On it were a barrel of water and a quantity of cement. Alongside of this platform, but 7 feet higher, and by the side of the street, was another platform. On it was a derrick and a small engine to run it. Sand and crushed stone were dumped to the bottom of the excavation from the street. From the arm of the derrick swung a bucket from a block and fall. The engineer would by means of his engine, raise the bucket, swing it free of the said hopper platform, and lower it to the bottom of the excavation. There 6 men of the plaintiff's gang would fill it with sand and crushed stone, whereupon the engineer would raise it to the said platform and swing it in by the derrick arm to the hopper, where the other 2 men of the gang would add water and cement and dump it into the hopper; and this process went on continually. The plaintiff came up from the bottom of the excavation to the said hopper platform by the ladder in supervising the work, and while he was at the edge of the platform calling down directions to the men below, the engineer swung the bucket rapidly across the platform by the derrick arm, and the bucket hit the plaintiff and knocked him off the platform and into the pit.

The principal question of negligence on which the case was tried, and which was found against the defendant by the jury, was whether the defendant owed the duty to the plaintiff and the other men of having a signalman at the edge of the engine platform to watch the men on the hopper platform below and direct the engineer in reference to their safety and also warn them of the approach of the bucket when necessary. There was sufficient evidence to support a finding that up to the night of the accident there was such a signalman, who called out such directions and warnings, and that the plaintiff was not aware of his absence or that he had been dispensed with. There was also sufficient evidence to support a finding that the engineer was stationed with his engine so far in or away from the edge of the engine platform, that he could not see the hopper platform, or a large part of it, or the persons thereon, so as to look out for them in the swinging of the bucket by the derrick arm. It was therefore a fair question whether the defendant was not guilty of negligence to the plaintiff in not having a signalman. Aleckson v. Erie R. Co., 101 App. Div. 395, 91 N. Y. Supp. 1029. The plaintiff had to use due care in his dangerous position, but it could not be ruled by the trial court that he was as matter of law guilty of contributory negligence. The refusal to charge the request on this head was not error, for while it was in the main correct, it contained the erroneous proposition that if the plaintiff "failed to observe" "the position of the bucket prior to the happening of the accident" he could not recover. That he failed to see it was the fact; but the question was whether, considering the lack of light, his surroundings and all, such failure was negligent. A trial judge is not required to separate the good from the bad in requests to charge. A request containing anything bad may be properly refused. The plaintiff was allowed to testify in his introductory examination that he had a wife and four children. It is cus

their status in the community, as that affects the credence and weight to be given to their evidence. The learned counsel for the defendant cites no decision that the practice is erroneous. If a case be one in which it is claimed the usual practice should not be followed, the reason therefore should be stated in the objection, instead of making the ordinary general objection, as was done in this case, so that the trial judge may exercise his discretion. The engineer being called by the defendant testified that he could see the hopper platform and did not need a signalman. Having denied on cross-examination that after the accident happened he exclaimed to another person, "Don't blame me, I had no signalman," such person was allowed to testify that he did. This was competent, not to prove that a signalman was necessary, but as a prior inconsistent statement affecting credibility. Hanlon v. Ehrich, 178 N. Y. 474, 71 N. E. 12. It was not error to refuse to charge that negligence of the defendant could not be based on failure to use a warning bell or whistle in the absence of a signalman. The jury could have found that that way of warning would have sufficed to excuse the failure to have a signalman. The learned trial judge did not touch on this head in his main charge. The matter of the sufficiency of the light, with all of the conditions, bore on the question of the plaintiff's contributory negligence as well as on the defendant's negligence in having the place where the plaintiff was dark, and the question of whether there should not therefore have been a signalman, and therefore the refusal of the court to withdraw that matter from the jury as requested by the defendant was not error. Two papers, purporting to contain statements of the accident made by two witnesses for the defendant but not signed by them, were received in evidence to show prior inconsistent statements by them, their attention having been called to them while they were on the stand. That the statements were not signed was no reason to exclude them, there being testimony that they read them and declared them to be correct. Novogrucky v. Brooklyn Heights R. Co., 125 App. Div. 715, 110 N. Y. Supp. 28. If any part of such a statement does not come under the head of prior inconsistency, but is foreign to the purpose for which the paper is admissible, it has to be specifically pointed out to the trial court in order to serve as the basis of error. Gaffney v. People, 50 N. Y. 416. The notice under the employer's liability act was sufficient. It says that the plaintiff "was struck by a bucket, which was being used for hoisting purposes, causing him to fall into a pit," and that this was caused by the failure of the defendant "to provide proper protection" for the plaintiff. These notices of laymen to laymen should not be judged with too much nicety. In the course of the examination of a witness, in answer to the question, "Whom did he" (the defendant's superintendent) "say this gentleman, Frank V. Johnson, was?" he said, "From the insurance company." The learned counsel for the defendant thereupon moved for the withdrawal of a juror, on the ground that it had been revealed to the jury that the defendant was insured against accidents. No such thing anywhere appears in the record. But in the trial of accident cases against insured defendants the plaintiff's counsel is not obliged to shape his