Benjamin Atha & Illingworth Co. v. Costello

• Decision Date: 27 February 1899
• Citation: 63 N.J.L. 27,42 A. 766
• Parties: BENJAMIN ATHA & ILLINGWORTH CO. v. COSTELLO.
• Court: New Jersey Supreme Court

42 A. 766

63 N.J.L. 27

BENJAMIN ATHA & ILLINGWORTH CO.

v. COSTELLO.

Supreme Court of New Jersey.

Feb. 27, 1899.

(Syllabus by the Court.)

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

Action by James Costello against the Benjamin Atha & Illingworth Company. There was a judgment for plaintiff, and defendants bring error. Reversed.

Argued November term, 1898, before MAGIB, C. J., and GARRISON and DIXON, JJ.

Edward M. Colie, for plaintiffs in error.

S. Kalisch, for defendant in error.

DIXON, J. The plaintiff, while in the employ of the defendants, and working in their shop, was injured by a plank that fell on him from the girders of the roof. The plank, with others, had been laid on the girders as a scaffold for men engaged in painting. The painting had been finished some days before the accident, and the negligence charged against the defendants was that they had permitted the planks to remain upon the girders unfastened, and liable to be shaken from their position by the jarring of the building, incident to the heavy work done in the shop. The plaintiff knew that the planks were there, and that the building was jarred by the work; but it was open to question whether he knew, or ought to have known, that the planks were not fastened.

In this state of the evidence, the defendants' counsel requested the court to charge the jury that the plaintiff was chargeable with notice of every fact which he would have known, had he exercised ordinary care to keep himself informed as to the matters concerning which it was his duty to inquire, and that, if the position of the plank over his head was such that, under all the circumstances of the situation, the plaintiff ought to have known it was likely to fall, he could not recover. As a response to these requests, the court charged that, when the plaintiff entered the service of the defendants, he assumed the risk of all obvious dangers, and risks arising in consequence of special features of danger known to him, and that if he knew the plank was over his head, and was not secured in any way, then it was an obvious danger, and he would be barred from recovery. He further charged that if the jury found that the danger incident to the plank was a risk arising in consequence of a special feature of danger, and that that special feature of danger was not known to the plaintiff,— was not plain and obvious,—then the remaining question would be, has the plaintiff established a right of recovery against the...