Farrell v. Diamond Alkali Co.

• Decision Date: 02 November 1951
• Docket Number: No. A--443,A--443
• Citation: 83 A.2d 900,16 N.J.Super. 163
• Parties: FARRELL v. DIAMOND ALKALI CO.
• Court: New Jersey Superior Court — Appellate Division

Page 163

16 N.J.Super. 163

83 A.2d 900

FARRELL v. DIAMOND ALKALI CO.

No. A--443.

Superior Court of New Jersey

Appellate Division.

Argued Oct. 8, 1951.

Decided Nov. 2, 1951.

Harry E. Walburg, Newark, argued the cause for appellant (Cox & Walburg, Newark, attorneys).

Herman M. Wilson, Newark, argued the cause for respondent (Morris Edelstein, Jersey City, attorney).

Before Judges JACOBS, EASTWOOD and BIGELOW.

The opinion of the court was delivered by

JACOBS, S.J.A.D.

This is an appeal by the defendant from a judgment entered in the Law Division pursuant to a verdict by the jury in favor of the plaintiff.

The defendant's plant at Kearny had been used in the manufacture of chrome. It was not in operation, was in a state of disrepair, and its interior and contents were covered with chrome dust. The defendant was repairing its plant and engaged the Frank P. Farrell Company as an independent contractor to install certain plumbing, heating and process piping. The plaintiff, a steam fitter, was employed by the Frank P. Farrell Company and worked at the defendant's premises from July to October, 1949. He spent most of this time at the plant where he repeatedly came in contact with the dust and contracted chrome dermatitis. He received medical treatment and later filed his complaint in the Law Division charging that his injuries resulted from the defendant's negligence. After trial the jury returned a verdict for the plaintiff in the sum of $2,000; on the defendant's motion to set it aside as excessive, and with the plaintiff's consent, it was reduced to $1,000; the defendant has duly appealed from the ensuing judgment.

The defendant's knowledge that the chrome dust constituted a hazard to persons working in the plant is not disputed. Its contract with the Frank P. Farrell Company contained a provision that the 'Contractor shall, during the progress of the work, cause approved safeguards to be used by all of its employees to avoid concomitant occupational hazards associated with bichromate and chromate manufacture.' And its witnesses testified that they specifically advised the contractor as to the need and use of masks, rubber gloves and other precautions for protection against chrome exposure. Admittedly, the defendant did not deal directly with the contractor's numerous individual employees or furnish them directly with any precautionary devices or instructions. Representatives of the contractor testified that precautionary devices and instructions were furnished by the contractor but the testimony on the plaintiff's behalf was to the contrary and the jury evidently accepted his version as hereinafter set forth.

The plaintiff was hired through his union hall and received no instructions other than to report at the plant. When he arrived he was not furnished with any mask, rubber gloves or other protective materials, received no precautionary instructions, and never saw any of his co-employees wearing masks or rubber gloves. There was a gray dust, which he could not then identify, throughout the plant and there were no blowers, exhaust fans or ventilators. After he had worked about two weeks his hands became itchy and he noticed little red spots. The nurse employed by the defendant at its premises told him that it was prickly heat and applied calomine lotion; she made no mention of the danger of chrome dermatitis and the need for precautions. His discomforts spread and he again visited the nurse who told him that he ought see Dr. Mears, his employer's company doctor. He was treated by Dr. Mears but there was no discussion as to the conditions of his employment. He continued work until October 2 and shortly thereafter visited Dr. Braitman who gave him further treatments.

During the trial the plaintiff called two other employees to testify on his behalf. Emil Hanclek stated that he was employed by the Frank P. Farrell Company in August, 1949 and, above objection, was permitted to testify that he received no precautionary instructions and suffered a chrome rash. Similarly, Howard Paul Kerr was permitted to testify that he received no precautionary instructions and suffered a chrome infection. At the close of the case the defendant moved for the entry of judgment contending that it was not negligent and that the plaintiff was guilty of contributory negligence and had assumed the risk of injury. This motion was denied and the matter was submitted to the jury. In support of its appeal the defendant urges primarily that the lower court erred in denying its motion for the entry of judgment and in its evidential rulings.

Our courts have repeatedly stated that employees of an independent contractor engaged to work at the owner's premises are invitees and the owner is under a duty to use ordinary care to see that the place in which their work is to be performed is reasonably safe. Murphy v. Core Joint Concrete Pipe Co., 110 N.J.L. 83, 86, 164 A. 262 (E. & A.1933); Beck v. Monmouth Lumber Co., 137 N.J.L. 268, 275, 59 A.2d 400 (E. & A.1947). In the instant matter the defendant was aware of the nature of the hazard which the dust created at its premises; on the other hand, invitees, although they could observe the dust, would ordinarily be unaware of its identity and latent danger unless properly cautioned. Under these circumstances, the defendant was under a duty to take proper steps for the protection of its invitees against chrome exposure. Sutton v. Lerner Stores Corp., 162 A. 645, 10 N.J.Misc. 1126 (Sup.Ct.1932); Santamaria v. Lamport & Holt Line, Ltd., 119 N.J.L. 467, 196 A. 706 (E. & A.1938); Kappertz v. R. B. McEwan & Son, 106 N.J.L. 484, 150 A. 412 (E. & A.1930). The defendant contends that it took such steps and discharged its duty of care when it advised the contractor of the hazard and the latter undertook contractually to provide the necessary safeguards. Although recent decisions elsewhere may be cited for this position (Engle v. Reider, 366 Pa. 411, 77 A.2d 621 (1951)), there are opinions by our former Supreme Court which support a contrary view. Walz v. Public Service Electric & Gas Co., 147 A. 654, 7 N.J.Misc. 993, 995 (Sup.Ct.1929); Sommer v. Public Service Corporation, 79 N.J.L. by our former Supreme Court which Lechman v. Hooper, 52 N.J.L. 253, 255, 19 A. 215 (Sup.Ct.1890). But cf. Bielecki v. Max Hertz Leather Co., 128 A. 543, 3 N.J.Misc. 375, 376 (Sup.Ct.1925) affirmed 102 N.J.L. 432, 131 A. 921 (E. & A.1926). In the Walz case the court in sustaining recovery by the plaintiff, an employee of an independent contractor, for injuries which resulted when he came in contact with an uninsulated electric wire on the defendant's premises, pointed out that the 'mere fact that a warning by the defendant company was given to the contractor does not, in our judgment, absolve the appellant company from liability.' (147 A. 655, 7 N.J.Misc. 993.) In the Sommer case Justice Trenchard similarly stated that 'If the contractor knew the danger, and failed to warn the decedent, he became also a tort-feasor; but that would not relieve the defendant from liability.' (79 N.J.L. 349, 75 A. 893.) Cf. Meny v. Carlson, 6 N.J. 82, 98, 77...