Gibilterra v. Rosemawr Homes

• Decision Date: 20 June 1955
• Docket Number: A--152,Nos. A--151,s. A--151
• Citation: 115 A.2d 553,19 N.J. 166
• 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.
• Court: New Jersey Supreme Court

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.

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.

Plaintiff brought this action against Rosemawr, United and Bayley to recover damages 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, construction or Other place in which this chapter is violated,' R.S. 34:5--161, N.J.S.A. (Emphasis supplied.) Whatever may be the case as between Vellone, on the one hand, and United and Bayley, on the other, one or the other of them, and not Rosemawr, was 'in charge' of the 'place,' the trench, where the Code was violated, if it was, and the violations cannot therefore be the basis of liability of Rosemawr. Trecartin v. Mahony-Troast Construction Co.,18 N.J.Super. 380, 87 A.2d 349 (App.Div.1952). Nothing in the record supports plaintiff's contention that Rosemawr participated in, actively interfered with, or exercised control of the manner and method by which the work of digging the trench was done. Cf. Riley v. Jersey Leather Co., 100 N.J.L. 300, 126 A. 457 (E. & A.1924); Trecartin v. Mahony-Troast Construction Co., supra. And the proofs do not bring the case within the exception to the general rule which subjects the owner to liability if the work was of the kind which Rosemawr should have recognized would during its progress necessarily create the danger of the mishap which occurred, and thus contained or involved an unreasonable or peculiar risk of bodily harm to plaintiff unless special precautions were taken, Restatement, Torts, secs. 413, 416, pp. 1118, 1128 (1934). The mere making of a trench with a steam shovel is not work which would necessarily give rise to an unreasonable or peculiar risk of the collapse of a sidewall upon workmen in the trench, and there is no showing to justify the inference that Rosemawr knew or should have known that danger of a collapse of the trench inhered in the soil in which the trench was dug. See Terranella v. Union Bldg. & Construction Co., 3 N.J. 443, 70 A.2d 753 (1950); 57 C.J.S., Master and Servant, § 590, p. 362 (1948). Three cases cited by plaintiff, Van Steenburgh v. Thornton, 58 N.J.L. 160, 33 A. 380 (E. & A.1895); Regan v. Palo, 62 N.J.L. 30, 41 A. 364 (Sup.Ct.1898) and Rocco v. F. A. Gillespie Co., 73 N.J.L. 591, 64 A. 117 (E. & A.1906), do not controvert, but support the proposition that Rosemawr cannot be liable in the circumstances. The opinions emphasize that in the Van Steenburgh case the defendant's liability to the plaintiff workman injured in the collapse of the trench 'was there placed upon the ground that there was in the earth being excavated a danger that was known to the master, or which, by the exercise of reasonable case he would have known.' Rocco v. F. A. Gillespie Co., supra, 73 N.J.L. at page 593, 64 A. at page 118. And it will be noted that the Safety Code does not require special precautions in every trench but only in a trench where such precautions are 'necessary' or when the trench is dug in 'loose or rolling soil.'

Plaintiff's proofs did, however, make out a case for liability of United and Bayley, provided such proofs were supplemented by expert opinion evidence which, as noted the witness Mandl was not permitted to give. Whether Bayley dug the trench in furtherance of United's general hire by Rosemawr of the shovel and operator or is to be deemed to have been permitted by United to become Vellone's servant in performing that task is a question for jury determination on the proofs, Restatement, Agency, sec. 227, p. 500, comment (c), pp. 501, 502 (1933); Larocca v. American Chain & Cable Co., 13 N.J. 1, 6, 97 A.2d 680 (1953); Younkers v. Ocean County, 130 N.J.L. 607, 33 A.2d 898 (E. & A.1943). Upon the premise...