Belleville Stone Co. of N.J. v. Mooney

• Decision Date: 12 November 1897
• Parties: BELLEVILLE STONE CO. OF NEW JERSEY v. MOONEY.
• Court: New Jersey Supreme Court

38 A. 835

60 N.J.L. 323

BELLEVILLE STONE CO. OF NEW JERSEY

v. MOONEY.

Supreme Court of New Jersey.

Nov. 12, 1897.

(Syllabus by the Court.)

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

Action by Henry Mooney against the Belleville Stone Company of New Jersey for personal injuries caused by defendant's negligence. There was a judgment in favor of plaintiff, and defendant brings error. Affirmed.

Argued February term, 1897, before DEPUE, VAN SYCKEL, and LIPPINCOTT, JJ.

Joseph Coult and Hayes & Lambert, for plaintiff in error.

Samuel Kalisch, for defendant in error.

LIPPINCOTT, J. The defendant in error, plaintiff below, was a quarryman in the employment of the Belleville Stone Company of New Jersey, plaintiff in error, defendant below, in its stone quarry at Avondale. It will be more convenient to denominate the parties as plaintiff and defendant, as in the action in the circuit court. On March 24, 1897, the plaintiff was injured by being struck by a stone from a blast of rocks in the quarry. At the time of the accident he was working at the foot of a derrick some distance from where the blasting was going on, and some distance from the blast which occasioned his injury. Another workman, by the name of Kerr, was up on the derrick, painting it, and the plaintiff's work was to remain and be at the foot of the derrick, with his hold on the rope by which Kerr was being raised and lowered as the work of painting progressed, and by which Kerr was lowered in order to alight and reach a place of safety when the explosions of the blasts took place in the quarry. The plaintiff's duty at the foot of the derrick was to hold the rope continuously, to raise and lower Kerr according to his directions, and, when a blast was about to take place, to lower him and assist him to alight from the board or chair to which the rope was attached, in order that Kencould avoid the danger of the blasts. The plaintiff had been in the employment of the company about two years as a laborer and quarryman. He had worked in other quarries before this employment. One Andrew Barr was superintendent of the quarry, having the power to employ and discharge workmen, and the general charge and supervision of the work in the quarry. Subordinate to him was one Perkins, who had the immediate charge of the workmen, and was called the foreman or boss. The fuse communicating with the explosive was lighted by Perkins, and the warning of "Fire!" was also given by Perkins. The plaintiff, on this occasion, when the warning of "Fire!" was given, proceeded to lower Kerr from the derrick, in order that he might reach a place of safety from the danger of the exploding blasts. Kerr was at work about 60 feet up this derrick. The plaintiff proceeded to lower Kerr, and help him from the board or chair which was attached to the rope by which he was raised and lowered. Both the plaintiff and Kerr then ran away from the blast, and, as they neared the engine house or shed which stood in the quarry, the blast exploded, and the stones and earth began flying around them. They both ran into the engine house, and just as the plaintiff had fairly entered a stone came through the roof, and struck him on the head. He received serious and permanent injuries, for which this action was brought. The blasts in the quarry were never covered, and the only precaution for the safety of the workmen was the warning of "Fire!" which was given in order that they could seek a place of safety from flying stones and earth caused by the explosion of the blast.

The first position taken by the defendant is that the trial court should have directed a nonsuit on the following grounds: First, that the plaintiff had not proved the negligence alleged in the declaration as a cause of action, and that no actionable negligence had been established against the defendant; and, second that the negligence, if any had been established, was the negligence of Perkins, the foreman, as a co-servant; and, third, that the plaintiff himself was negligent in going inside the engine house instead of staying outside, where he could see the stones and dirt; and, fourth, that the accident and injury to the plaintiff arose from risks and dangers which were incidental to his employment, open and obvious to him, and which were perceivable by him in the exercise of ordinary care.

An examination of the declaration, in answer to the first point, reveals the averments that the business of blasting in this quarry was one attended with great dangers, and that the employes were required to remain at their respective work until the order to fire the blast was given, at which time the fuse which communicated with the explosives used for the blasts would be lighted, and that between the time of the lighting of the fuse and the time of the explosion the employes were required to seek a place of safety. The further averments of the declaration, so far as the question presented is concerned, are that it was the duty of the defendant to use due and proper care that a timely warning should be given to its employes when such blasts were being made, and to use due and proper care that its employes should have reasonable time to seek a place of safety before such explosions resulting from the blasts should take place, and, again, to use due and proper care to provide and maintain a place of shelter and safety for the use of their employes while said blasting was being made and had; and that the defendant had not regarded its duties in this behalf, and had not exercised the due care required in these respects, whereby, and by reason of which negligence, the Injuries complained of had accrued to the plaintiff. The averments of the declaration, in themselves, of the negligence, are manifestly sufficient. In the plaintiff's ease much evidence was admitted, without objection, to show the situation and condition of the quarry, the system according to which the work of quarrying stone was carried on, the character of the work, and the dangers connected with it, and the precautions afforded, and the degree of care exercised to protect the workmen from the danger which occasioned the injury to the plaintiff. It is not contended at all that this class of evidence was inadmissible under the averments of negligence contained in the declaration, and it is a fair question whether the plaintiff under his evidence had not established such facts as required the submission of the case to the jury. But early in the trial of the cause a question arose as to the admissibility, under the averments of the declaration, of evidence of a promise made by Barr, the general superintendent, before the accident, to give a longer time between the warning of "Fire!" and the explosion of the blast to enable the quarry men to get out of the way of danger from the blasts. The evidence, in substance, which was admitted against objection and exception, was that the plaintiff and other workmen, a few days before the accident, made complaint to Barr that a sufficient time was not given after the warning, "Fire!" for them to escape the dangers of the blasts, and that upon such complaints to him he promised to remedy the defect or danger complained of. The defendant company contends that this evidence was not admissible under the averments of the declaration, and that it forms an element of negligence not declared upon, and that for this reason a nonsuit should have been granted.

That this evidence was admissible under the allegations of the declaration cannot be questioned. If for any purpose it was admissible the court would not exclude it. Whether it was such as created a new element of negligence may very well be questioned, but, if admissible for any legal purpose, it could not be rejected by the trial court. The duties of the defendant, as the master of the plaintiff, were set out in the declaration, and certain neglects were charged, having relation to the time given between the signal of warning, as a precaution for the safety of the plaintiff, and the explosion, which was the danger from which the workmen were to seek refuge, and during the course of and continuance of the employment of the plaintiff the conduct of the defendant, as the master of the plaintiff or those representing the master in the management and control of the workmen and in the performance of the duties of the master, has a direct relevancy to the question whether the due care required by law in behalf of the workmen was exercised. It exhibited, not only the dangerous character of the work, its lurking or secret dangers and defects, but also tended to show the system under which, and by which, the work was conducted, and bearing directly upon the establishment of the known or unknown dangers of that system, and as to the care required of the master under all circumstances. As the averment of the declaration stood at the time of the admission of the evidence, it was pertinent upon the subject, to go to the jury, whether this risk of danger was fairly within the contract of hiring or not. The evidence in no respect changed the character of the contract of employment, in any of its terms or implications, nor furnished any distinctly new element of negligence upon which a recovery was sought. It tended directly to prove the dangers or the defects of the system by which the work was being operated, or the dangers and defects of the work as conducted there by the defendant, and indicated, considering it to be true, the character of care required to be exercised at that time for the safety of the workmen. It was, as it seems to me, pertinent to the issues presented, of whether the care required by the contract subsisting between the plaintiff and defendant had been or would be in the future exercised on the part of the defendant. The assertion of the counsel of the plaintiff was that it was to be used as a substantive fact bearing upon the question whether the accident was the result of...