[225 N. Y.] Statement of case. [Jan., CELIE G. TURNER, Appellant, v. THE CRYSTAL FILM COMPANY, Respondent. Negligence - master and servant — place to work - dangerous situation questions of negligence for jury erroneous dismissal of complaint. 1. Where the place in which the work was to be performed was prepared by the master and furnished by it to the servant and there was a dangerous situation, apparent if any reasonable inspection was given, in an action by the servant to recover for injury the question of defendant's negligence and of plaintiff's contributory negligence should be submitted to the jury. 2. Plaintiff, a moving picture actress, was taken to a wood by her employer and required to stand on a limb of a tree, a few feet from the ground. She was then instructed to drop to the ground and assured that "everything is perfectly safe." On striking the ground her foot came in contact with a partly covered root, resulting in a fracture. Held, that in an action to recover for such injury it was error to dismiss the complaint. Turner v. Crystal Film Co., 173 App. Div. 969, reversed. (Argued December 11, 1918; decided January 7, 1919.) APPEAL from a judgment, entered May 31, 1916, upon an order of the Appellate Division of the Supreme Court in the first judicial department, reversing a judgment in favor of plaintiff entered upon a verdict and directing a dismissal of the complaint. The nature of the action and the facts, so far as material, are stated in the opinion. John M. Gardner for appellant. It was the defendant's duty to see that the landing place, where plaintiff was requested to drop by Golden, the superintendent, was made reasonably safe. This was an absolute duty which could not be delegated. (McGuire v. Bell Telephone Co., 167 N. Y. 211; Benzing v. Steinway & Sons, 101 N. Y. 552.) Where, as here, the master gives assurance of safety 1919.] Opinion, per ANDREWS, J. [225 N. Y.] he and not the employee assumes the risk. (Span v. Ely, 8 Hun, 255.) Stephen P. Anderton, Edward K. Hanlon and Alfred W. Melden for respondent. The evidence failed to show any negligence on the part of the defendant or Mr. Golden in preparing the ground. (McGuire v. Bell Telephone Co., 167 N. Y. 208.) If there was any negligence it was that of Fish and Koch in preparing the ground; and defendant is not liable for their negligence in that detail of the work. (Citrone v. O'Rourke Engineering Co., 188 N. Y. 330; Hahn v. C. M. Opera Co., 126 App. Div. 815.) Mr. Golden's declarations, testified to by the plaintiff, were mere matters of opinion, and liability on defendant's part cannot be predicated thereon. (O'Brien v. Buffalo Furnace Co., 183 N. Y. 317; Pellegrino v. Smith Co., 176 App. Div. 930; Scott v. D., L. & W. R. R. Co., 148 App. Div. 699.) ANDREWS, J. This action was brought to recover damages for injuries caused by alleged negligence of the defendant. It resulted in a verdict for the plaintiff for the sum of $4,000. The judgment entered upon this verdict was reversed by the Appellate Division which disapproved of the finding of the jury that the defendant was negligent and the complaint was dismissed. An appeal was then taken by the plaintiff to this court. On the evidence the jury might have found that the plaintiff was engaged as an actress by the defendant who was making a film for a moving picture. This film was executed under the supervision of a Mr. Golden, the director and general manager of the defendant. The scene being taken was in a wood in the open country. The plaintiff was carried to the spot in an automobile. She was left in the machine while Mr. Golden and others entered the wood to prepare a place for the picture. In [225 N. Y.] Opinion, per ANDREWS, J. [Jan., half an hour they returned and told her that they were ready. She was taken to a tree on the outskirts of the wood. The scene required her to stand on a small limb of the tree a few feet from the ground grasping a higher limb with her hands. This she did and the picture was taken. Then Mr. Golden instructed her to hang from the upper limb and to drop to the ground. To these instructions, she replied, "Oh." He then said, "do not be afraid. It is all right. Everything is perfectly safe. We have tested the limb and it is only a short drop at that." The plaintiff took the required position. Mr. Golden directed her to drop. She did so but on striking the ground her left foot came in contact with a root and the result was a serious fracture of her ankle. This root the plaintiff had not seen before the fall. Just how obvious it was is not clear. The plaintiff describes it as being from one to two inches in diameter. She says it came out from the tree sometimes below and sometimes above the surface of the ground. She says it was not covered with leaves, at least at the point where her foot struck. Later she says that her foot struck the root through the leaves but the fair inference from her whole testimony is that the root was partly covered and partly uncovered. The defendant's witnesses state that the trees of the wood were pine and that there were no leaves on the ground. Under these circumstances, we do not think that the dismissal of the complaint was justified. There was some evidence from which negligence on the part of the defendant might be inferred. The plaintiff was required by the defendant to drop three or four feet at a point where the jury might say that the accident which actually happened should have been foreseen. It is not such a case as are those referred to by the respondent where the progress of the work creates the 1919.] Statement of case. [225 N. Y.] conditions complained of. Here the place in which the work was to be performed was prepared by the defendant and furnished by it to the plaintiff. There was a dangerous situation which must have been apparent if any reasonable inspection were given. If the plaintiff is to be believed here was no concealed or latent defect but an open one. The question of the defendant's negligence and of the plaintiff's contributory negligence should be submitted to the jury. As the Appellate Division has reversed the finding as to defendant's negligence, the judgment appealed from must be reversed and a new trial ordered, with costs to abide the event. HISCOCK, Ch. J., CHASE, COLLIN, CARDOZO and POUND, JJ., concur; CUDDEBACK, J., not voting. Judgment reversed, etc. JOHANNA F. SWEENEY, Appellant, v. THE CITY OF NEW YORK, Respondent. Negligence streets and sidewalks New York (city of) requirement of charter that notice of intention to bring action for injuries, caused by negligence of the city, must be filed with the corporation counsel - - when letters detailing accident and making claim for damages mailed to finance department and by it delivered to corporation counsel constitute sufficient notice and filing thereof. 1. When it is said in a statute that a paper must be filed with an officer the requirement is complied with when the party delivers that paper to the officer at his official place of business and there leaves it with him. Whether he does this personally or by mail is immaterial, so long as it is actually received. 2. Plaintiff was injured, as she says, by stumbling over a defective cover of a hole in the sidewalk on the side of Pacific street near the Twenty-third Regiment Armory. Plaintiff's father wrote the finance department of the city, giving the time of the accident and adding: "There is a coal or vent hole in the sidewalk over which has been [225 N. Y.] Statement of case. (Jan., placed a wooden cover which protrudes two or more inches above the sidewalk, one portion of which is broken off." Plaintiff's father again wrote referring to the accident, complaining of the delay, stating that if he heard nothing within a few days he would be obliged to place the matter in the hands of an attorney. Both of these letters were received by the finance department and came into the possession of the corporation counsel. Both letters were written at the plaintiff's request and on her behalf, within six months after the accident. The complaint was dismissed on the ground that the notice given was not sufficient. It is claimed that the complaint is defective in that it failed to allege that thirty days had elapsed since the demand was presented to the comptroller and that he thereafter for thirty days refused to make any adjustment of the claim. Such a statement should have been included in the complaint, but proof of both of these facts was received without objection. Held, that with this evidence in the case, the complaint should be deemed amended to conform to the proof. He'd, further, that the point of the accident was clearly and definitely indicated and the letters sufficiently stated an intention to sue the city in case the claim was not settled. Hence the complaint should not have been dismissed. Sweeney v. City of New York, 173 App. Div. 984, reversed. (Argued November 26, 1918; decided January 14, 1919.) APPEAL, by permission, from a judgment of the Appellate Division of the Supreme Court in the second judicial department, entered June 1, 1916, unanimously affirming a judgment in favor of defendant entered upon a dismissal of the complaint by the court at a Trial Term. The nature of the action and the facts, so far as material, are stated in the opinion. Theodore H. Lord and Charles W. Lucas for appellant. There was a sufficient compliance with the statutory requirements as to notice. (Werner v. City of Rochester, 77 Hun, 33; 149 N. Y. 563; Beyer v. City of North Tonawanda, 183 N. Y. 338; Sheehy v. City of New York, 160 N. Y. 139; Walden v. City of Jamestown, 178 N. Y. 213; Missano v. Mayor, etc., 160 N. Y. 123.) |