Cicalese v. Lehigh Valley R. Co.

• Decision Date: 02 March 1908
• Citation: 69 A. 166,75 N.J.L. 897
• Parties: CICALESE v. LEHIGH VALLEY R. CO.
• Court: New Jersey Supreme Court

69 A. 166

75 N.J.L. 897

CICALESE

v. LEHIGH VALLEY R. CO.

Court of Errors and Appeals of New Jersey.

March 2, 1908.

(Syllabus by the Court.)

Error to Supreme Court.

Action by Joseph Cicalese for personal injuries against the Lehigh Valley Railroad Company. Judgment for plaintiff and defendant brings error. Reversed, and a new trial ordered.

Conover English and Robert H. McCarter, for plaintiff in error. Thomas L. Raymond, for defendant in error.

BERGEN, J. The plaintiff was one of a gang of laborers employed as trackmen by the defendant, working under the supervision of a foreman who was constantly present directing the work. At the close of the work, on August 8, 1905, the plaintiff, together with other of the workmen, started to go home on a hand car as they had been accustomed to, and, while operating the car by means of a handle bar, the plaintiff was thrown from it and suffered injuries, compensation for which is the object of this suit. The car was provided for the use made of it by the defendant, and the cause of the injury was a defective handle bar, the use of which was necessary to propel the car. Before he began to use the bar, the plaintiff knew it was defective, and called the attention of the foreman to it, saying: "The handle is all loose. We can't work with this." The condition of the bar had been known to the plaintiff for a day or two previous, so, when he undertook to use it on the day of the accident, he was aware that, in order to operate the car, he could only do so by using an appliance which he knew to be defective and dangerous, and thereby assumed, unless relieved from it, the risk of injury likely to happen to him from such use. It is not claimed in this case that the appliance, when furnished by the master, was not in good order and a reasonably safe tool for the purpose intended.

The right of this plaintiff to recover under the conditions present depends upon his showing affirmatively that he was absolved from his implied contract with the defendant that he would assume the risk of obvious dangers connected with his employment, upon the ground that the master had made him a promise to remedy the defective appliance, upon which promise he had a lawful right to rely. The only promise shown was one by the foreman of a gang of workmen of which the plaintiff was one. If such promise was made by one standing in the place of the master and authorized to speak for it in that respect, then the plaintiff had a right to rely upon it, and the inference of his willingness to incur the obvious risks incident to his employment no longer remained, and he was relieved from the implied assumption of such risks. It is not pretended that there was any express authority shown, but the plaintiff insists that the jury could properly infer that there was an implied authority vested in the foreman incident to the position held by him, and that, when the foreman said in reply to plaintiffs complaint, "I will fix it to-morrow morning," it was the promise of one authorized by the master to speak for him. Whether such inference should be drawn from these facts was submitted to the jury, who found that it could be, and there was a verdict for the plaintiff. At the close of the plaintiff's case, a motion to nonsuit was made, and at the close of the whole case defendant moved for the direction of a verdict for the defendant. Both motions were refused, and an exception taken and sealed to each refusal. The uncontradicted testimony was that the person who made the alleged promise was merely the foreman of a gang of men engaged in repairing and laying railroad tracks, who under the settled law of this state was their fellow servant, and the fact that he was foreman or boss of the gang under his immediate supervision and direction justifies no inference that he was authorized to speak for the defendant, and promise that it would repair the defective appliance. He had no more authority, because of the position he held, to make such a promise for the master than any other of plaintiff's fellow servants, for all were employed in a common service. O'Brien v. American Dredging Co., 53 N. J. Law, 294, 21 Atl. 324. In Spencer v. Haines (N. J. Sup.) 64 Atl. 970, plaintiff was injured because a guard rail, which was out of order, had been removed for repairs. She had complained to an engineer regularly employed for the purpose of looking after all the machinery in defendant's building, and he had promised plaintiff to repair the rail, and taken it away for that purpose. In an opinion by the Chief Justice the Supreme Court declared that, in the absence of proof of any fact from which authority could be fairly inferred, it was error to leave to the jury the question whether plaintiff was justified in relying upon the promise to repair made by the engineer. If the authority to make the required promise cannot be lawfully...