Curley v. Hoff

• Decision Date: 06 March 1899
• Citation: 62 N.J.L. 758,42 A. 731
• Parties: CURLEY v. HOFF.
• Court: New Jersey Supreme Court

42 A. 731

62 N.J.L. 758

CURLEY

v. HOFF.

Court of Errors and Appeals of New Jersey.

March 6, 1899.

(Syllabus by the Court.)

Error to supreme court.

Action by Henry Hoff against Michael Curley. Judgment for plaintiff. Defendant brings error. Reversed.

Charles L. Corbin, for plaintiff in error.

Warren Dixon, for defendant in error.

COLLINS, J. This writ of error brings before us exceptions to rulings made at the trial of an action brought by a servant against his master to recover damages for personal Injuries sustained in the service, in which action the plaintiff prevailed. The defendant was engaged in constructing, for the county of Hudson, a public road, with a brick sewer therein. At the time the plaintiff was hurt, the different branches of the work were in simultaneous progress under one foreman. As the trench for the sewer was excavated, it was sheathed with planks, held in place by rangers braced laterally across it. As it deepened, these planks were driven down farther. Some rock was encountered, and this had to be removed by blasting. The plaintiff was one of two bricklayers engaged in building the sewer, following up the workmen engaged in making the trench. Shortly after a blast of rock, made at a point about 100 feet in advance of the bricklayers, the lower part of the bank on one side of the trench caved in upon and injured the plaintiff as he stooped to his work. At this place the sheathing had not been driven down to the bottom of the trench by some two or three feet, and there was more or less percolation of water, so that the first course of the sewer was being laid in mud. The fall of earth seems to have been due to the action of the water, aided, perhaps, by the jar of the blast. The learned Judge who tried the cause refused to nonsuit the plaintiff. He instructed the jury that it is the duty of a master to exercise reasonable care to provide for his servant a safe place in which to work, and to keep it safe, and that he cannot delegate that duty so as to relieve himself of liability. This rule, he said, was subject to the qualification that the servant must assume the risk of obvious or incidental dangers and of his own negligence. In applying the rule to the case in hand, the judge instructed the jury that a delegation of such duty to the foreman would render his negligence imputable to the defendant; and on the assumption that it was the duty of the defendant to afford some protection against the caving in of the trench, and that he had undertaken to perform that duty by means of sheathing, the judge further instructed the jury that it was the duty of the defendant to exercise "reasonable care in the construction of that sheathing so as to make that place, so far as reasonable care could make it, a safe place for the workman to engage in his labor." Exceptions, duly sealed, present these rulings for review.

The general rule stated to the jury is well established. Recent assertions of it in this court are to be found in the cases of Comben v. Stone Co., 59 N. J. Law, 226, 36 Atl. 473, and Stone Co. v. Mooney, 61 N. J. Law, 253, 39 Atl. 764. Its application, however, often presents difficulty. Where the work and place of working are coincident, it seems to have little appropriateness. It is hard to see how, for example, where the work is excavation, the master is under any duty to guard his servants against the very danger that arises from their work. The opinion read for this court in the case of Van Steenburgh v. Thornton, 58 N. J. Law, 160, 33 Atl. 380, seems to assert such a duty, but such is not the force of the decision as was pointed out in the supreme court in the later case of Regan v. Palo, 41 Atl. 364, where it was held that a servant takes the risk of the caving in of the walls of a trench he is digging unless there be a latent danger, which the master, with reasonable care, might have discovered. The facts recited in the report of the Van Steenburgh Case show that there was such a latent danger, knowledge of which was chargeable to the master, and therefore this court refused to disturb a verdict against him. The learned judge who delivered the opinion considered the case as one of duty to provide a safe place in which to work, but it is plain that the real duty neglected concerned this latent danger. Had the plaintiff, in that case, been told of the buried water pipe, the presence of which made it unsafe to dig near it, he would have proceeded with the work at his own risk. The case was parallel to one decided at the same term, where the principle was declared that a master is bound "to use reasonable care to protect his servant from unnecessary risk, and is liable for damages occasioned to him through some latent danger of which he should have warned him." Telegraph Co. v. McMullen, 58 N. J. Law, 155, 33 Atl. 384. The declaration in the Van Steenburgh opinion that the master was bound by the negligence of the boss foreman was really without pertinence. The record then before the court shows that there was evidence sufficient to warrant the Jury in finding that the master himself knew, or ought to have known, of the latent danger. His contract with the township bound him to protect water pipes, and a public map on file disclosed the existence of the water pipe that constituted the danger. This point was made in the brief filed in support of the judgment. The only exceptions on which error was assigned were to the refusal to nonsuit or direct a verdict for the defendant. Hence nothing was really decided beyond what those exceptions necessarily involved. Coming to a case where sheathing of a sewer trench is necessary or desirable, the rule of the master's duty to provide a safe place for working seems as little appropriate. The sheathing is a part of the work, and, where the earth is soft or friable, a necessary part, for without it there can be no trench. There should be no difference between the rule governing the construction of a sewer and that governing the construction of any other work. The trench, sheathed or unsheathed, is a necessary part of such construction.

Another general rule, as well established as that under discussion, is that a master who has used due care in the selection and employment of his servants is not responsible for an injury done to one of them by the carelessness of another in the course of their common employment. The courts of this state have inflexibly adhered to this rule since its first formal assertion in Harrison v. Railroad Co., 31 N. J. Law, 293. It is as applicable to a case where the work involves the place of working as to any other. It has been properly applied by the supreme court in Gilmore v. Nail Co., 55 N. J. Law, 39, 25 Atl. 707, to a case of alleged negligent...