Wolven v. Gabler (132 A.D. 45, 1909)

Miller, J.:

The plaintiff’s evidence tends to show .that his injuries were caused by a negligent direction given by the defendant’s foreman, whose duty appears to have been that of superintendence. The-only question involved on this appeal is whether the notice of the time, place and cause of the injury was served in time to justify the submission of the case to the jury as an action by the servant to recover damages, caused by an act of superintendence, by one whose sole and principal duty was that of superintendence.

The accident occurred on the 14th of October, 1903. The plaintiff sustained a compound fracture of the leg and was taken to a hospital. An effort was made to save the leg, but owing to complications it was found necessary to remove it, which was done on the.'2'fth of February, 1904. The plaintiff left the hospital on the 30th of March, 1904, and the notice was served on the sixteenth of April. On the 2d of December, 1903, the plaintiff’s wife, at his request, wrote to the defendant in reference to the plaintiff’s injuries, and on the 4th of December, 1903, the defendant replied by a letter, the contents of which were communicated to the plaintiff. In that letter the defendant said : “ In reference to any claim that you might make I would not deem- it advisable until yoii know the result of the injury.”

■ Section 2 of the Employers’. Liability Act provides :