Cross v. Robert E. Lamb, Inc.

• Decision Date: 23 February 1960
• Docket Number: No. A--465,A--465
• Parties: Howard CROSS, Plaintiff-Respondent, v. ROBERT E. LAMB, INC., a corporation, Defendant and Third-Party Plaintiff-Appellant (Truskey Industrial Pipe Fitters, Inc., a corporation, Third-Party Defendant-Respondent).
• Court: New Jersey Superior Court — Appellate Division

Page 53

60 N.J.Super. 53

158 A.2d 359

Howard CROSS, Plaintiff-Respondent, v. ROBERT E. LAMB, INC., a corporation, Defendant and

Third-Party Plaintiff-Appellant

(Truskey Industrial Pipe Fitters, Inc., a corporation,

Third-Party Defendant-Respondent).

No. A--465.

Superior Court of New Jersey, Appellate Division.

Argued Nov. 16, 1959.

Decided Feb. 23, 1960.

Sidney M. Schreiber, Newark, argued the cause for defendant and third-party plaintiff-appellant (Schreiber, Lancaster & Demos and John W. Hayden, Jr., Newark, attorneys).

Horace G. Brown, Camden, argued the cause for plaintiff-respondent (Brown, Connery, Kulp & Wille and Joseph H. Rodriguez, Camden, attorneys).

Peter J. Devine, Jr., Camden, argued the cause for third-party defendant-respondent (Kisselman, Devine & Deighan, Camden, attorneys).

Before Judges GOLDMANN, CONFORD and HANEMAN.

The opinion of the court was delivered by

CONFORD, J.A.D.

Plaintiff Cross was a pipe fitter-welder employed by the third-party defendant Truskey Industrial Pipe Fitters, Inc. ('Truskey,' hereinafter), in connection with the latter's subcontract to install plumbing and heating equipment in a large, four-story building being erected in Camden for the Campbell Soup Company. The general contractor on the project was the defendant, also third-party plaintiff, Robert E. Lamb, Inc. ('Lamb,' hereinafter). Plaintiff's right hand, mainly the three middle fingers, was severely and permanently injured when a heavy length of iron pipe fell on it as he was bringing it into the building as it hung suspended from an outdoor hoist being operated by an employee of Lamb. He brought this action against Lamb for his injuries and consequent losses, and Lamb filed a third-party complaint against Truskey, invoking an indemnification agreement entered into between them as part of the subcontract.

The jury returned a verdict of $110,000 in favor of the plaintiff against Lamb. It also answered special interrogatories submitted to it by the court to be answered in connection with the third-party complaint should it find a verdict for plaintiff against Lamb. It answered in the affirmative the question whether there was negligence by Lamb through its agents and employees which proximately caused plaintiff's injuries; and in the negative a similar question as to Truskey's negligence. Thereupon the court granted Truskey's motion for dismissal of the third-party claim. On a motion for a new trial by Lamb the court reduced the verdict to $80,000, ascribing its action to the probable failure of the original verdict to reflect the factor of the capitalized present value of plaintiff's loss of future earnings.

Lamb appeals, raising a number of points both in respect of its adjudicated liability to the plaintiff (emphasizing errors affecting the amount of the verdict) and the dismissal of its claim over against Truskey. We proceed to a recital of the general circumstances attending the accident.

Lamb had obtained and was using a hoist device, stationed alongside the building under construction, to bring building materials and supplies to various floors of the structure. The apparatus was operated by a Lamb employee, West. While used primarily by Lamb for its own operations, it was available for the use of subcontractors at a fixed scale of charges, but only under West's operation. The hoist functioned in two ways: (a) through a conventional elevator-cage inside the steel hoist structure; and (b) by a cable and hook suspended over the top of the hoist structure and thence over an outrigger or 'Chicago boom' attached to the structure about one-third below the top. A heavy metal ball was attached to the cable a short distance above the hook. Both the elevator and the Chicago boom cable were raised and lowered by a winch-hoist powered by a gasoline motor on the ground nearby, equipped with foot-brakes and 'dogs' for holding either lifting apparatus in fixed position in the course of use. All of this apparatus was controlled, maintained, and operated exclusively by West. While its vertical position was fixed, the Chicago boom could be swung laterally in either direction from the ground by a 'tag-line' attached to the cable.

On July 29, 1957 plaintiff and three fellow-employees of Truskey were engaged, in cooperation with West, in the raising of a 4-inch, 20-foot iron pipe, weighing 275--300 pounds, from the ground up to and through a fourth-floor window-opening in the building under erection. As had been done before, the pipe was to be raised with the cable and Chicago boom. The Truskey men attached the pipe to the hook by means of a 'choker,' or sling device, one loop of which was affixed tightly around the pipe at about five feet 'off center' and the other loop suspended from the hook. Peterson, a Truskey employee waiting with plaintiff on the fourth floor to receive the pipe and bring it into the building, signalled to Fletcher, another Truskey man, standing on the ground, who relayed the signals to West. West could not see above the second floor. The first signal was to raise the cable. West lifted the pipe too high above the window, then lowered it on signal, but below the window level, and then, again on signal, raised it slowly to a point where the bottom end hung 12 to 18 inches above the sill, and about six to ten feet from the building wall, stopping there on Peterson's signal relayed by Fletcher. The Chicago boom was then swung laterally toward the building by Groomes, another Truskey man on the ground, using the tag-line under the direction of Fletcher. By pulling on the line Groomes was able to maneuver the hanging pipe to a point near enough to the window to be handled by plaintiff. At that stage, West, according to his testimony, was waiting for another signal to slowly lower the pipe so that it could be brought all the way into the building. The signal never came. After he 'held the load' for what seemed to him 15 or 20 minutes (at another point he said five or six minutes), without moving the cable, he learned of the accident. He denied that he had dropped or 'slacked off' the cable. Plaintiff testified he had gotten hold of the pipe to bring it in, his right gloved hand around the end of it, and brought it to the window sill, when 'the whole load comes down * * * the pipe load and all,' mashing his hand and fingers against the sill. Peterson described the occurrence: 'all of a sudden everything came down * * *. The cable, the ball and the choker * * * everything was hanging inside the building.' The chocker was still attached to the hook, but had slid halfway down the pipe. Fletcher testified that before he could give the intended last signal for a lowering of the cable, the pipe and cable 'all of a sudden' came down, the pipe 'glanced' and in 'hitting' the wall loosened the choker. When he ran up the stairs to help Peterson, he saw the ball (weight) inside the wall and below the sill. Groomes testified that he was pulling tightly on the tag-line to keep the pipe near the building in a position to be taken in when the cable and line 'let loose and I went off balance.'

There was testimony, undenied, that immediately before the accident the ball and hook of the cable were between the top of the window and the roof; and that immediately after, they were inside the building below the lower sill of the window. These facts, together with all the other surrounding circumstances, make the conclusion almost irresistible that the descent of the pipe causing plaintiff's injury was due to a sudden dropping or slipping of the cable for a distance of at least several feet.

I.

Lamb contends there was plain error when the trial court charged the jury as follows 'The third affirmative defense asserted by the defendant Lamb is that this accident and the resulting injury was proximately caused by the negligence of the Truskey Company through its employees. In determining this question, you are to apply the same legal definitions and principles as heretofore stated. The burden is likewise upon the defendant Lamb to support this defense by the greater weight of the believable testimony. If the defendant Lamb has satisfied you that this contention is true by the greater weight of the evidence, then there can be no recovery by the plaintiff, and your verdict should be 'no cause for action.' Please keep in mind, that the question of Truskey's negligence, if any, is raised by Lamb only as a defense to the action brought by the plaintiff against the Lamb Company. In no event can you return a verdict against Truskey on the plaintiff's suit, since Truskey is not a defendant therein. Your only verdict in this case can be either for the plaintiff and against the defendant Lamb Company, or for the Lamb Company and against the plaintiff. The only one that the plaintiff can recover against is the defendant Lamb, if he has established by the preponderance of the evidence that this accident resulted either from the sole negligence of Lamb, or from the joint and concurrent negligence of Lamb and Truskey, and that such sole, or concurrent, or joint negligence was the proximate cause of the accident and injuries.' (Emphasis ours.)

The stress of the objection is the imposition upon Lamb of the burden of proving that the accident was caused by the negligence of Truskey. There was no objection to this portion of the charge, but defendant asserts the claimed error was so serious and prejudicial as to require a reversal of the verdict on liability on the theory of 'plain error.' R.R. 1:5--3(c). It is clear that the portion of the charge specified was technically erroneous, since the burden of proof, or ultimate persuasion of the jury, as to defendant's negligence and its causal proximity to the injurious accident always remains with the plaintiff, including consideration of the factor, if raised by the proofs, as to whether the accident was produced solely by the negligence of another. Cella v. Roth, 113 N.J.L. 458, ...