Campbell v. T. A. Gillespie Co.

• Decision Date: 17 June 1903
• Citation: 69 N.J.L. 279,55 A. 276
• Parties: CAMPBELL v. T. A. GILLESPIE CO.
• Court: New Jersey Supreme Court

55 A. 276

69 N.J.L. 279

CAMPBELL

v. T. A. GILLESPIE CO.

Court of Errors and Appeals of New Jersey.

June 17, 1903.

(Syllabus by the Court.)

Error to Circuit Court, Passaic County.

Action by James Campbell against the T. A. Gillespie Company. Judgment for plaintiff, and defendant brings error. Affirmed.

Corbin & Corbin, for plaintiff in error.

A. M. Ward and John M. Ward, for defendant in error.

VAN SYCKEL, J. James Campbell, the plaintiff, was in the employ of the defendant company, engaged in calking a four-foot steel water pipe, in February, 1902. His brother William was working on the opposite side of the pipe, driving rivets, and one John McClurg was inside the pipe. To bring the ends of the pipe together so that the rivet holes in one would be over the holes of the other, the riveters used "drift pins," which are round pieces of steel about seven inches long, small at one end and larger at the other. These pins were driven into the holes to draw them together for the insertion of the rivets. While William was driving a drift pin, a small piece of the frayed head of it flew off and struck the plaintiff in the eye, and destroyed its sight. This suit is brought by the plaintiff to recover damages for the loss of his eye. The negligence imputed to the defendant company is its failure to provide proper drift pins for the work, the claim being that those which were provided were battered and frayed on the bead by the hammering incidental to their use. The judgment recovered by the plaintiff is the subject of review.

The drift pin used at the time of the accident, with others of less size, had been turned into the shop of the company by the workmen two or three months before the plaintiff was injured. John McClurg, a witness for the plaintiff, testified that on the day of the accident he was sent by the superintendent of the company to get these riveting tools, and that be brought the best drift pins he could find, only one of which was a seven-eighths pin. William Campbell testified for the plaintiff that when he started to work the superintendent came around and inquired how it was, and he said, "We have a poor lot of tools," to which the superintendent replied, "They are the best we have got, and there is no blacksmith on the job. Go ahead and work with them." William testified further that the pin was in the same condition when the accident happened as it was when he first used it, that it was absolutely necessary to use a seven-eighths pin, and that there was no other seven-eighths pin in the place where the pins were kept. There was further evidence that the pin was not fit to work with, unless the bead was dressed down by a blacksmith.

The duty of the master to use reasonable care to furnish proper tools to his workmen is not controverted. Maher v. Thropp, 59 N. J. Law, 187, 35 Atl. 1057; Steamship Company v. Ingebregsten, 57 N. J. Law, 400, 31 Atl. 619. If therefore it is true that the pin, when furnished, was imperfect, and that no other pin fit for the work could be found upon the premises, the defendant was chargeable with actionable negligence. In the case last cited this court held that if the master selects an agent to perform the duty of inspection for him, and the agent fails to exercise reasonable care and skill in its performance, the master is liable for the fault of the servant, but if the servant's duty to inspect or repair apparatus is incidental to his duty to use the apparatus in a common employment with fellow servants, then the master is not responsible to the fellow servants for the default of the co-servant. In Coyle v. Griffing Iron Co., 63 N. J....