Fagan v. Cent. R. Co. of N.J.

• Decision Date: 14 June 1920
• Docket Number: No. 37.,37.
• Parties: FAGAN v. CENTRAL R. CO. OF NEW JERSEY.
• Court: New Jersey Supreme Court

111 A. 32

FAGAN

v. CENTRAL R. CO. OF NEW JERSEY.

No. 37.

Court of Errors and Appeals of New Jersey.

June 14, 1920.

(Syllabus by the Court.)

Appeal from Circuit Court, Monmouth County.

Action by William A. Fagan against the Central Railroad Company of New Jersey, to recover for personal injuries. Judgment for plaintiff, and defendant appeals. Affirmed.

See, also, 107 Atl. 422.

George Holmes and De Voe Tomlinson, both of Jersey City, for appellant.

Wight, Wight & Golembock, of Perth Amboy, and Merritt Lane, of Newark, for respondent.

TRENCHARD, J. This action was instituted under the federal Employer's Liability Act (35 Stat, at L. 65, c. 149; U. S. Comp. Stat. § 8657) to recover damages for personal injuries sustained by the plaintiff while employed by the defendant as a freight handler at pier 10, North River, New York City.

The verdict below was for the plaintiff, and this appeal brings up the judgment entered thereon. We are of the opinion that it should not be disturbed.

We think that the motion for a direction of a verdict for the defendant was rightly denied. In support of the motion it was urged in the court below and is argued here, that there was no evidence of negligence upon the part of the defendant. But we think there was.

Prior to the accident the plaintiff had been employed on the pier in operating a small hand truck only. The evidence tended to show that on the day in question he was directed for the first time to assist in transporting merchandise from the pier to the float lying alongside, by means of a trailer truck hauled by an electric truck. The evidence tended to show that he had never worked upon an electric truck or trailer before. It tended to show that the trailer (with electric truck attached) had been loaded by other employes of the defendant, with heavy crates of pineapples, and then, without any instruction with respect to the manner of doing the work, the plaintiff was directed to "get on that truck." It tended to show that he "put one foot on the electric truck and one on the pin of the trailer" to balance himself (the position usually assumed by a man engaged in such work), and while he was in that position the electric truck (operated by another employe) hauled the trailer from the pier to the float. He further testified that—

"When it left the dock to go onto the float and struck the gangplank it shook the merchandise in the trailer, and that commenced to come over on me, and I put my hand over this way to keep them from coming down, and the weight of them came over on me, straightened me out, and tore this hip out of my body and mashed my leg, and my foot was paralyzed."

The evidence also tended to show that the crates were piled seven feet high on the trailer, which was unusual; that there was no guard rail on the front of the trailer, the one usually there having been removed; that the usual "race piece" designed to facilitate a smooth passage from the pier to the gangplank was not in place, and that the accident was caused by these defects, for which the defendant was responsible.

The fact that it was also open to the jury to have found contrary conclusions as to the various matters of fact is immaterial, because in passing upon a motion for the direction of a verdict the court cannot weigh the evidence, but must take as true all evidence which supports the view of the party against whom the motion is made, and must give him the benefit of all legitimate inferences which may be drawn therefrom. Andre v. Mertens, 88 N. J. Law, 626, 96 Atl. 893.

Where, as here, the existence of negligence depends upon the conclusion to be drawn from a variety and combination of circumstances considered in their relation to and their reaction upon each other, the jury, and not the court, is normally the tribunal to draw such conclusions. Sutton v. Bell, 79 N. J. Law, 507, 77 Atl. 42.

It is also contended that the motion for a direction should have been granted because the plaintiff assumed the risk. We think not. While an employe assumes the risks and dangers ordinarily incident to the employment in which he voluntarily engages, so far as these are not attributable to the negligence of the employer or those for whose conduct the employer is responsible, the employe has a right to assume that the employer has exercised proper care with respect to providing a reasonably safe place of work, reasonably safe appliances, and a reasonably safe system or method of work, and is not to be treated as assuming a risk that is attributable to the employer's negligence until he becomes aware of it, or it is so plainly observable that he must be presumed to have known it. Chesapeake & Ohio R. R. Co. v. Proffltt. 241 U. S. 462, 36 Sup. Ct. 620. 60 L. Ed. 1102.

Moreover, in order to charge an employe with the assumption of a risk attributable to a defect due to the employer's negligence, it must appear, not only that he knew (or is presumed from its...