Essex County Electric Co. v. Kelly

Decision Date07 June 1894
Citation57 N.J.L. 100,29 A. 427
PartiesESSEX COUNTY ELECTRIC CO. v. KELLY.
CourtNew Jersey Supreme Court

(Syllabus by the Court.)

Error to circuit court, Essex county; Childs, Judge.

Action by Andrew Kelly against the Essex County Electric Company. Judgment for plaintiff, and defendant brings error. Reversed.

Kelly, the defendant in error, was a "lineman" in the employ of the Essex County Electric Company, the plaintiff in error. This action was brought by Kelly in the circuit court to recover damages from the company for an injury received by him from the breaking of a pole upon which he was working, by direction of an officer of the company. Judgment having been rendered in his favor, the company brought this writ of error, and assigned various errors upon exceptions taken at the trial.

Argued February term, 1893, before the CHIEF JUSTICE, and DIXON, REED, and MAGIE. JJ.

Edward A. Day, for plaintiff in error. Samuel Kalisch, for defendant in error.

MAGIE, J. After the evidence produced by Kelly had been put in, counsel for the company moved for a nonsuit, on the ground that it did not establish any liability on the part of the company for the injury Kelly had received. The motion was denied and an exception taken. After the evidence produced by both parties had been put in, counsel for the company requested the trial court to direct the jury that the liability of the company for the injury to Kelly had not been made out. The request was refused, and an exception taken. Two of the assignments of error are based upon these exceptions, and they may be considered together, for they obviously present the same question, viz. whether, upon the facts established by proof, a neglect of duty on the part of the company to Kelly may be inferred. Railway Co. v. Block, 55 N. J. Law, 605, 27 Atl. 1067. The parties bore to each other the relation of master and servant. The liability of a master to a servant for an injury received in his employ will be established by proof that the injury was caused by the master's willful wrongdoing, or resulted from the breach of any duty which the master owed the servant arising out of the relation between them. Bish. Noncont. Law, § 639. There was no pretense in this case that the company had been guilty of any willful wrong to Kelly. His claim was and is that the injury he received was the result of a breach of a duty which the company owed him. The better view of a master's duty to a servant is that which, taking into consideration the well-settled doctrine that a servant, by accepting employment, consents to take the risk of all dangers obviously or naturally incident to such employment, imposes on the master a positive duty to take reasonable care and precaution not to subject the servant to other or greater dangers. The rule thus formulated is of wide application, but, with reference to such cases as that now under consideration, may be thus stated: The master must take reasonable care to have the tools and appliances with which, and the places on or about which, the servant is to be employed, reasonably safe for the work the latter is employed to do. Shear. & R. Neg. §§ 92, 93; Smith, Mast. & Serv. 236; Harrison v. Railroad Co., 31 N. J. Law, 293; Hutchinson v. Railroad Co., 5 Exch. 343. Applying the rule thus stated to the case before us, it is obvious that, to justify the submission to the jury of the liability of the 'company to Kelly, the facts established must have warranted the inference that the breaking of the pole, which was the cause of his injury, resulted from a breach of the company's duty to him in respect to that pole. The company did not guaranty the safety of the pole, nor was it its duty to provide a sufficient pole, as was erroneously held below. Its duty was less extensive, and would have been satisfied if it had taken reasonable care to provide a pole of sufficient strength to bear the strain of the wires and the weight of the servant employed thereon to do what was required to fit them for the service of the company. The mere fact that Kelly received injury does not establish, even prima facie, the negligence or breach of duty of the company. Evidence which may justify the inference of negligence of the master, but also and equally the inference of the negligence of a fellow servant, will not be sufficient; nor will evidence which is equally consistent with the absence as well as with the existence of negligence on the part of the master. Bahr v. Lombard, 53 N. J. Law, 238, 21 Atl. 190, and 23 Atl. 167; Duffy v. Upton, 113 Mass. 544; Rose v. Railroad Co., 58 N. Y. 217; Baulic v. Railroad Co., 59 N. Y. 356; Cotton v. Wood, 8 C. B. (N. S.) 568. When a servant receives an injury by reason of a latent defect in the appliances with which or the places in which he is employed, to establish the liability of the master the evidence must justify the inference that the master either knew, or, by the exercise of the care and diligence required of him by the rule, might have known, of the defect. Wright v. Railroad Co., 25 N. Y....

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    ...740; Railroad Co. v. Tindall [Kan.], 46 P. 12; Carter v. Railroad [Mass.], 58 N.E. 694; Duffy v. Uplon, 113 Mass. 544; Electric Co. v. Kelly, 57 N. J. L. 100, 29 A. 427; Bien v. Unger, 64 N. J. L. 596, 46 A. Davidson v. Davidson, 46 Minn. 117, 48 N.W. 560; Mining Co. v. Kitts, 42 Mich. 41, ......
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