Dettmering v. English
| Decision Date | 13 November 1809 |
| Citation | 44 A. 855,54 N.J.L. 16 |
| Parties | DETTMERING v. ENGLISH. |
| Court | New Jersey Supreme Court |
(Syllabus by the Court.)
Error to circuit court, Hudson county.
Action by Claus Dettmering against Richard English. Judgment for defendant. Plaintiff brings error. Reversed.
Argued June term, 1809, before MAGIE, C. J., and VAN SYCKEL, GARRISON, and LIPPINCOTT, JJ.
Flavel McGee, for plaintiff in error.
Charles L. Corbin, for defendant in error.
MAGIE, C. J. Dettmering brought this action against English to recover damages for an injury received by him by the fall of a portion of a wall which was being constructed by English for the city hall of Jersey City. English had contracted with the city for the mason and iron work of the city hall, and had subcontracted the iron work to the Fagin Iron Works, in the employ of which Dettmering was working on the building. The occurrence is the same which was before the court of errors in Jansen v. City of Jersey City, 61 N. J. Law, 243, 39 Atl. 1025. On the authority of that case, the employes of English in building the wall which fell were not fellow servants of Dettmering.
The bills of exception show that at the close of plaintiff's case a motion for nonsuit was interposed on the ground that there was a failure of proof of any negligence on the part of English, or of any negligence which was chargeable to him. The trial judge reserved decision on motion, and proceeded to hear the evidence of the defendant. At the close of the whole case defendant asked for a direction for a verdict in his favor upon the same ground upon which he had moved for the nonsuit. This motion was granted; the trial judge giving as a reason that the only question in the case was whether the wall that fell should have been braced, and that it then appeared to him, on the evidence, that bracing was not necessary. Exception was allowed to the direction of a verdict, and plaintiff's main contention is directed to it as erroneous. The bill of exceptions presenting this question contains the whole evidence adduced at the trial. It appears therefrom that Dettmering was lawfully upon the premises, engaged in his duty to his employer in performing the work which the Fagin Iron Works had contracted with English to do. It follows that English owed to Dettmering a duty to take reasonable care that the wall in question should be so constructed as not to fall upon and injure him while thus lawfully on the premises. If, upon the evidence, a reasonable inference of failure to perform that duty could be drawn by the jury, it was obviously erroneous to withdraw the case from the jury by the direction for a verdict. Such a course could only be justified by the total lack of evidence from which such an inference could properly be drawn. It appears from the evidence...
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