Enright v. Oliver & Burr

• Decision Date: 15 June 1903
• Citation: 69 N.J.L. 357,55 A. 277
• Parties: ENRIGHT v. OLIVER & BURR.
• Court: New Jersey Supreme Court

55 A. 277

69 N.J.L. 357

ENRIGHT

v. OLIVER & BURR.

Court of Errors and Appeals of New Jersey.

June 15, 1903.

(Syllabus by the Court.)

Error to Supreme Court.

Action by Thomas Enright against Oliver & Burr, a corporation. Judgment of nonsuit, and plaintiff brings error. Affirmed.

Warren Dixon, for plaintiff in error.

Bedle, Edwards & Lawrence, for defendant in error.

HENDRICKSON, J. The plaintiff, who is a carpenter, was engaged, with other carpenters and with laborers, in constructing center panels within the spaces made by the iron crossbeams of a large refrigerator building in Jersey City, then in course of erection, which were for the temporary support of a concrete floor then being laid in the several stories of the building. The work had progressed until the fourth floor had been reached, and while the plaintiff was engaged in nailing the corners of a center panel, and in nailing and fitting together the sheathing boards that had been laid down thereon, a defective support gave way under his weight, so that he fell through the sheathing to the floor below, and sustained injuries thereby, for which he brought suit against his employer, the defendant corporation. The gravamen of the action was negligence in failing to provide proper support to the floor or sheathing upon which the plaintiff was working, and in failing to provide competent and skillful employes to lay and construct such flooring, and in failing to properly inspect and maintain the same in a reasonably safe and sound condition while the plaintiff was working thereon in discbarge of his duties.

At the close of the plaintiff's evidence at the trial, motion was made for a nonsuit upon the ground, among others, that the accident was the result of the negligence of a fellow servant. The learned trial judge ordered a nonsuit, observing that the case was either within the principle of Curley v. Hoff, 62 N. J. Law, 759, 42 Atl. 731, or within that of Saunders v. Eastern Hydraulic Company, 63 N. J. Law. 554, 44 Atl. 630, 76 Am. St. Rep. 222. We have not stopped to determine as to the applicancy of these cases, for we can more appropriately, we think, invoke in support of the nonsuit the doctrine of fellow servant. It is contended for the plaintiff that the defendant failed in the duty to use reasonable care to provide for him a reasonably safe place in which to work. But this duty of the master does not apply where the place of work is one that the servants themselves undertake to erect and provide as one of the duties and undertakings of their common employment. In such a case, if any injury occurs to an employe by reason of negligent construction, caused by the carelessness of a co-employé, the master is not liable. This principle is clearly laid down by the Supreme Court in Maher v. McGrath, 58 N. J. Law, 469, 33 Atl. 945, and in this court In Olsen v. Nixon, 61 N. J. Law, 671, 40 Atl. 694. The only liability that could fall upon the master in such case would be for negligence in the selection of the workmen. And the general rule is also well established that employes of a common master, who are engaged in the common employment of erecting the same structure, are all fellow servants. 12 Am. & Eng. Enc. 1015, and note 2, where cases are cited. The same principle is recognized in Maher v. McGrath, ubi supra, when' the plaintiff was a laborer, who sued the master for injuries received from the fall of a scaffold while attending upon masons engaged in constructing the walls of a brick building.

One of the questions to be considered in this case is, was the plaintiff injured through the fault of a co-servant, and not through the fault of the master? Some further statement of the facts may be helpful. The panel referred to, as to form of construction, is aptly described in the case as being like a box without top or bottom. It was about 20 feet by about 6 feet in dimensions, and had a depth of 18 inches. It rested upon hangers secured upon the beams. Upon the sides of the panel were also hangers or clips, in which were laid putlogs, spoken of in the case as "putlocks" or "footlocks," across the panel, upon which the sheathing was laid. The putlogs were five in number, and the sheathing was in two sections. In one section the boards were about 15 feet in length, and were met by the boards in the adjoining section, having a length of about 5 or 6 feet. The boards of the two sections were made so as to meet upon the fourth putlog. It is assumed that this putlog, by reason of the junction thereon of the two sections of the sheathing, would naturally be subjected to the greater weight or strain from any incumbrance put upon it. The putlogs were out of 3 by 4 inch timber, 13 feet long; and, in order make three putlogs out of one piece of timber, the third one in some cases had to be cut an Inch short. To supply this deficiency in length, furring strips of the required dimensions were nailed at the end with three or four nails. In placing the putlogs into the hangers or clips, it was found that one out of the five was a short one that had been pieced; and that was the fourth in order, upon which the two sections of the sheathing met. It was found after the accident that it was this fourth putlog which gave way under the plaintiff's weight, and, while the putlog proper fell below, the furring strip had split off, and was found in the hanger. It is contended by the plaintiff that the master was negligent in furnishing imperfect and defective putlogs, and was also negligent in employing unskillful workmen, in the persons of ordinary laborers, who were attending upon the carpenters, to lay them down, whereby the defective putlog was placed in such a position as to cause the accident to the plaintiff, which otherwise would not have been at all likely to occur. And, first, as to the alleged negligence of the master in furnishing some putlogs which were pieced at the end, and alleged to be thereby rendered defective. The putlogs were being made by some of the carpenters at work on the job. They had cut a number of them an inch short, in the way before stated, piecing them at the end, under the direction of the foreman; and then the...