Gibilterra v. Rosemawr Homes, s. A--151

• Court: United States State Supreme Court (New Jersey)
• Citation: 115 A.2d 553,19 N.J. 166
• Docket Number: A--152,Nos. A--151,s. A--151
• Parties: Virgil GIBILTERRA, Plaintiff-Respondent, Plaintiff-Appellant, v. ROSEMAWR HOMES, Inc., a corporation of the State of New Jersey, Defendant-Respondent, and United Construction Co., Inc., a corporation of the State of New Jersey, and Francis L. Bayley, Defendants-Appellants.
• Decision Date: 20 June 1955

Page 166

19 N.J. 166 115 A.2d 553 Virgil GIBILTERRA, Plaintiff-Respondent, Plaintiff-Appellant,
v.
ROSEMAWR HOMES, Inc., a corporation of the State of New
Jersey, Defendant-Respondent,
and
United Construction Co., Inc., a corporation of the State of
New Jersey, and Francis L. Bayley, Defendants-Appellants. Nos. A--151, A--152. Supreme Court of New Jersey. Argued May 16 and 23, 1955.
Decided June 20, 1955.

Page 169

[115 A.2d 554] Samuel Doan, Paterson, argued the cause for plaintiff-respondent-appellant (Archibald Kreiger, Paterson, of counsel).

Robert Shaw, Newark, argued the cause for defendants-appellants (Shaw, Hughes & Pindar, Newark, attorneys; Robert Shaw and William T. McElroy, Newark, of counsel).

James J. Langan, Jersey City, argued the cause for defendant-respondent (Emory, Langan & Lamb, Jersey City, attorneys; James B. Emory and James J. Langan, Jersey City, of counsel).

The opinion of the court was delivered by

WILLIAM J. BRENNAN, Jr., J.

United Construction Co., Inc., supplied Rosemawr Homes, Inc., with a steam shovel and an operator, Francis L. Bayley, to do excavation work on a tract being developed by Rosemawr in the City of Clifton. One Patsy Vellone had a contract with Rosemawr to do the plumbing work on the project. Vellone marked off the site of a trench to be dug in order that house plumbing might be connected with an underground sewer lateral. Bayley dug the trench, which was 30 to 35 feet long, 4 feet wide and 10 to 12 feet deep, depositing the excavated soil on one side of the trench in a pile which, according to plaintiff, reached a height of 8 or 9 feet. That side collapsed and seriously injured plaintiff, Vellone's employee, who was working in the trench, about to make the sewer connection. The collapse occurred a short time after plaintiff and Vellone had dug more soil with pick and shovel from the collapsed side near the bottom of the trench to reach the sewer lateral which was embedded there.

Page 170

Plaintiff brought this action against Rosemawr, United and Bayley to recover damages[115 A.2d 555] for his injuries. At the close of plaintiff's case the action was dismissed by the trial court on the ground that there was no proof of negligence on the part of any defendant. Plaintiff offered an expert witness, Morris Mandl, to testify as to 'standard methods' and in what way they were not followed in the digging of the trench; but Mr. Mandl was not permitted to testify because his name was not supplied by plaintiff in response to an interrogatory that he 'state the name of every person known to plaintiff to have knowledge of any of the facts on which the allegations of the plaintiff are based.' The Appellate Division sustained the dismissal as against Rosemawr, but reversed as against United and Bayley. Gibilterra v. Rosemawr Homes, Inc., 32 N.J.Super. 315, 108 A.2d 295 (1954). We granted certification, 17 N.J. 225, 111 A.2d 117 (1955).

We agree that the dismissal should stand as against Rosemawr Homes, Inc. No proofs were offered to sustain the allegations that Rosemawr was negligent in its selection of Vellone or in hiring the shovel and its operator from United. Cf. Sarno v. Gulf Refining Co., 99 N.J.L. 340, 124 A. 145 (Sup.Ct.1924), affirmed per curiam 102 N.J.L. 223, 130 A. 919 (E. & A.1925); see Prosser, Torts, p. 252 (1941). In such case the general principle is that the landowner is under no duty to protect an employee of an independent contractor from the very hazard created by the doing of the contract work. Broecker v. Armstrong Cork Co., 128 N.J.L. 3, 24 A.2d 194 (E. & A.1942); Meny v. Carlson, 6 N.J. 82, 89, 97, 77 A.2d 245, 22 A.L.R.2d 1160 (1950). The obligations under the Safety Code, R.S. 34:5--1 et seq., N.J.S.A., that the sides of every excavation in connection with a building operation 'shall be sheet piled, braced or shored When necessary to prevent the soil from caving in on those engaged in work within such excavation,' R.S. 34:5--21, N.J.S.A., and 'All trenches In loose or rolling soil in connection with building operations shall be properly shored to prevent soil from caving in,' R.S. 34:5--23, N.J.S.A., are imposed only upon 'any manager, superintendent, owner, foreman or other person In charge of any building,...