Byram v. Warner-Quinlan Co.
| Decision Date | 14 May 1928 |
| Docket Number | No. 68.,68. |
| Citation | 141 A. 809 |
| Parties | BYRAM v. WARNER-QUINLAN CO. |
| Court | New Jersey Supreme Court |
(Syllabus by the Court.)
Appeal from Supreme Court.
Action by Leon Byram against the Warner-Quinlan Company. From a judgment for plaintiff, defendant appeals. Affirmed.
Autenrieth, Cannon & Wortendyke, of Jersey City (Reynier J. Wortendyke, Jr., of Jersey City, of counsel), for appellant.
Archie Elkins, of Jersey City (Alex. Simpson, of Jersey City, of counsel), for respondent.
This case was tried at the Hudson circuit, and resulted in a verdict in favor of the plaintiff, and the defendant has taken this appeal from the judgment entered on the postea.
The testimony taken at the trial shows that the situation was this: In December, 1925, the defendant company contracted with the M. W. Kellogg Company to make certain repairs upon a certain steel still owned by the defendant and located on its property. Pursuant to this contract, the Kellogg Company sent two of its employees, the plaintiff and a helper, to make the repairs. The defendant had erected a scaffold to be used by the plaintiff in doing the repair work. While he and his helper were on the scaffold, ready to begin the work, the scaffold collapsed, and the plaintiff was thrown to the ground and was injured.
The defendant contends that its motions for nonsuit and for the direction of a verdict should have been granted because there was no evidence which would justify the jury in concluding that the accident was the result of negligence on the part of the defendant. But this contention is ill-founded in point of fact. There was testimony that an inspection made after the accident occurred disclosed that this scaffolding was improperly constructed because of the fact that the nails used in building it were entirely too small, and that this caused the platform, when the weight was put on it, to collapse. The question of the negligence of the defendant was, therefore, for the jury.
The next point is that the motions should have been granted because, under the proofs submitted, the defendant's carpenter in doing the work of building the scaffolding was a fellow servant of the plaintiff. Not so. In order to create such relationship the plaintiff and the carpenter must have been the employees of a common master (Hardy v. D. L. & W. R. R. Co., 57 N. J. Law, 505, 31 A. 281; Jansen v. Jersey City, 61 N. J. Law, 243, 39 A. 1025), and the evidence tended to show they were not. Moreover, in discussing the motion for the direction of a verdict, the court said to the counsel for the defendant, "I understand your position to be that you do not dispute responsibility for exercising reasonable care in doing what you did do in the erection of a platform, but you insist that there is no testimony here to show that you did not exercise that degree of care?" Counsel replied, "Exactly." The court then added, ...
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