We think that the prominent features which distinguish this notice from the Finnigan one are that it does state beyond substantial criticism what did actually and directly cause the injuries, whereas the Finnigan notice did not, and also that the specifications of defendant's legal agency in causing the accident, though perhaps in some degree general when considered simply by themselves, are apt and applicable, whereas no one of those in the Finnigan case was. In so far as the first feature is concerned, it also distinguishes this case from those relied on by respondent ( Barry v. Derby Desk Co., 121 App. Div. 810; Bovi v. Hess, 123 App. Div. 389; Glynn v. N.Y.C. H.R.R.R. Co., 125 App. Div. 186; Kennedy v. N.Y. Tel. Co., 125 App. Div. 846; Matrusciello v. Milliken Bros., 129 App. Div. 661; Galino v. Fleischmann C. Realty Co., 130 App. Div. 605) in each one of which the notice merely stated supposed omissions of the employer legally contributing to the accident and wholly failed to state the nature of the accident. We think that the order of the Appellate Division must be reversed and the judgment of the Trial Term affirmed, with costs in both courts.
The modification of the doctrine of contributory negligence provided by section 3 of the statute relates only to the question as to whether the employee's continuance in the employment after knowledge of the conditions causing the injury amounts to contributory negligence of itself, which is made one of fact subject to the power of the court to set aside a verdict which is contrary to the evidence. ( Kennedy v. New York Telephone Co., 125 App. Div. 846; Roche v. India Rubber, etc., Co., 115 id. 582; Wilson v. New York Mills, 107 id. 99; Chisholm v. Manhattan R. Co., 116 id. 320; Lester v. Crabtree, 125 id. 617; Faha v. Wynkoop, Hallenbeck Crawford Co., 72 Misc Rep. 391.) It was incumbent upon the plaintiff, before he was entitled to recover, to establish affirmatively that, at the time of the accident, he was using "due care and diligence." In other words, was free from contributory negligence.
The purpose of the statute is to notify the employer of the occurrence, of the happening, that he may investigate it while it is still fresh. This conclusion is supported by the decisions of this court. ( Kennedy v. N.Y. Telephone Co., 125 App. Div. 846; Lobasco v. Moxie Nerve Food Co., 127 id. 677; Palmieri v. Pearson Son, Inc., 128 id. 231, and cases cited.) The case of Finnigan v. N.Y. Contracting Co., 194 N.Y. 244), relied upon by the appellants, does not decide the contrary.