Gudnestad v. Seaboard Coal Dock Co., s. A--107

Citation15 N.J. 210,104 A.2d 313
Decision Date29 March 1954
Docket NumberNos. A--107,A--108,s. A--107
PartiesGUDNESTAD v. SEABOARD COAL DOCK CO. et al. (two cases).
CourtUnited States State Supreme Court (New Jersey)

Arthur J. Sills, Perth Amboy, argued the cause for appellant (Wilentz, Goldman, Spitzer & Sills, Perth Amboy, attorneys).

George F. Lahey, Jr., Newark, argued the cause for respondent Pennsylvania R. Co.

Harry E. Walburg, Newark, argued the cause for respondent Seaboard Coal Dock Co. (Cox & Walburg, Newark, attorneys).

The opinion of the court was delivered by

WACHENFELD, J.

The plaintiff brought suit against the Pennsylvania Railroad Company, John Gerba, Jr., and Seaboard Coal Dock Company, alleging he was severely injured by reason of their negligence on September 13, 1950 when he was struck by a coal dump railroad car in the railroad company yard in South Amboy under circumstances described later.

The jury returned a verdict of $60,000 in favor of the plaintiff against the Pennsylvania Railroad Company, hereinafter referred to as Pennsylvania, but exonerated Seaboard Coal Dock Company, hereinafter referred to as Seaboard, and John Gerba, Jr.

After the denial of motions for a new trial by the plaintiff, directed toward Seaboard and Gerba, by the Pennsylvania, cross-appeals were filed. The Appellate Division reversed as to the railroad company and affirmed as to Seaboard and Gerba, thereby nullifying the plaintiff's recovery.

Petitions for certification in both the Pennsylvania and Seaboard cases were granted, bringing the issues here for disposition. The cause against the defendant Gerba was abandoned.

The coal lock, together with the land railroad tracks, dumper, kick-back system, all appurtenances, equipment and machinery at South Amboy, was owned by the Pennsylvania. This property suffered considerable damage as a result of a terrific explosion on May 19, 1950.

Shortly thereafter the restoration of the plant was undertaken. Many men were engaged in this endeavor, and the electrical repairs throughout the entire extensive area, including work on the two dumpers, were performed by Coleman Electric Company under contract with the Pennsylvania. In addition to the eight or nine Coleman employees, of whom the plaintiff was one, there were carpenters, laborers and other craftsmen working 'all over the place,' 'crossing the tracks,' in an effort to put 'those dumpers and that operation back in place.'

The operation referred to, by which coal is transferred from railroad cars into barges, is described with exceptional clarity in the opinion of the Appellate Division, Gudnestad v. Seaboard Coal Dock Co., 27 N.J.Super. 227, 99 A.2d 201, 206 (App.Div.1953), and reference is directed to the graphic explanation therein for an understanding of the system.

It reveals that Seaboard is an independent contractor hired by the Pennsylvania to conduct the unloading operation. It assumes charge of the loaded coal car at the foot of a trestle-like structure called a dumper and operates the necessary machinery to draw the car up an incline to a platform where the coal is emptied out. At this point a brakeman in the employ of the Pennsylvania takes his position in the rear of the car. After the next car shoves it off the platform, the unloaded car proceeds by gravity along a length of track on the ground to another incline or kick-back, ascends that structure, and then, when its momentum is expended, gravity reverses its direction. As it descends the kick-back, a switch automatically operates to direct the empty car onto a track traversing the dumper and running out into another section of the yard.

While traveling along the portion of track between the kick-back and the yards, an empty coal car with the defendant Gerba attending the brake struck the plaintiff, severing his leg and inflicting other personal injuries.

The theory of liability sought to be enforced against the Pennsylvania is grounded in invitation, it being urged that the railroad was derelict in its duty of keeping its premises safe for the plaintiff, allegedly an invitee at the point where the mishap occurred.

As to Seaboard, it is generally alleged this independent contractor was remiss in its obligation to exercise due care with respect to the plaintiff, who was lawfully on the premises owned by the Pennsylvania.

As to the Pennsylvania Railroad Company

The trial court determined that the plaintiff, 'being an employee of a contractor doing work for the Pennsylvania Railroad Company, became an invitee on the premises in so far as the Pennsylvania Railroad Company is concerned,' and therefore the railroad company 'owed the plaintiff a duty of exercising reasonable care commensurate with this invitation.' Whether or not the defendant fulfilled its obligation in this respect was left to the jury for its determination.

However, the Appellate Division concluded there was no competent proof warranting 'an inference that the railroad company impliedly invited the employees of the contractors engaged in the making of the repairs to cross the tracks at that place and proceed beneath the trestle as a means of entrance and egress to or from their places of actual employment on the property.' It therefore voided the judgment entered upon the jury's verdict.

The reasoning employed at the trial level was premised upon an implied invitation emanating from the contractual relationship between Coleman and the Pennsylvania which created the duty in the defendant to render the premises reasonably safe for the purpose of the plaintiff's engagement. Sommer v. Public Service Corp., 79 N.J.L. 349, 75 A. 892 (Sup.Ct.1910).

But the Appellate Division decided this defendant was then absolved from that duty because the liability created by it was only co-extensive with the invitation extended, which was exceeded, relying upon Phillips v. Library Co., 55 N.J.L. 307, 27 A. 478 (E. & A.1893).

We have no quarrel with the rule of the Phillips case, supra, but are not in accord with the Appellate Division's application thereof to the case Sub judice.

There is ample evidence here that Coleman's employees, including the plaintiff, up to the time No. 2 dumper was put into operation, worked throughout a wide area, including the machine shop and both dumpers. For a period of over two months they had traversed the tracks freely and frequently at the point in question as well as at others to accomplish their respectively assigned tasks in making the repairs called for by their employer's contract.

The testimony indicated there was a shed about 10 feet to one side of the tracks along which the plaintiff was struck and about 50 feet diagonally way from the place where he was attempting to cross the tracks. It was in the vicinity of one of two dumpers owned by the Pennsylvania, designated numerically during the trial as dumper No. 1 and dumper No. 2. This building was used as an office by the foreman of Coleman's employees, who kept their tools there and changed to street clothes before going to their cars at quitting time. There is no evidence indicating when the shack was erected other than the testimony of the foreman that it was there when he arrived on the job.

The plaintiff, along with most of the other workmen, parked his car in a gulley about one-quarter of a mile from dumper No. 2. It was necessary to cross the tracks somewhere in order to travel between this parking area and the shed, unless one were to detour 'a couple of hundred feet' by going around the kick-back at the end of the track. The evidence indicates this circuitous route was not resorted to, but rather that both Coleman employees and others crossed 'anywhere' before dumper No. 2 was 'put into final operation.'

Furthermore, the workmen were frequently obliged to cross the track in question in order to get from the shed containing their tools to the place of their daily work. 'The dumper was down and we were back and forth all the time with flood lights, piping, wiring, ripping down pipes and taking down old wire.' And the witness Callahan, testifying for the plaintiff with respect to one of the photographs in evidence, said: 'The dumper being down, we crossed here sometimes and would go along here to the spigot and wash up or else we would come down around here. We crossed any place beyond here.'

'Q. You were pointing to in front of the dumper, and as you are looking at the picture you are in back of the dumper. A. Yes.

'Q. And that generally was what happened there as to crossing the tracks. I mean the men crossing over to get to the other side. A. Yes, that was about the normal procedure coming across the tracks.'

In addition to this, there was ample testimony that the specific point at which the plaintiff crossed the tracks had been used as a means of access to a 'passageway' under the trestle immediately opposite thereto. The evidence indicates the men crossed frequently at either end of the dumper, because at those places they could pass beneath the structure. The plaintiff spoke of going through one passageway in order to make his way to the shed, but said if he were working 'on the forepart of the dumper, I would go through the other passageway.' Had he not been struck, he testified he would have crossed the tracks 'right across through the passageway. * * * I would have walked right through here, underneath the stairway, through the passageway.' And at the place where the accident happened, Gudnestad insisted there was a definite path: 'I know definitely there is a pathway in there.'

The pattern of behavior and the prevalent, recognized practices indicative of the custom as to usage of the means of ingress and egress in question by a large number of employees upon the premises over a long period of time seem well established by the record.

In Murphy v. Core Joint Concrete Pipe Co., 110 N.J.L. 83, 164 A. 262, 263 (E. & A.1932), the rule is succinctly stated to be:

'* * * the owner or occupier of lands...

To continue reading

Request your trial
52 cases
  • Laba v. Board of Educ. of Newark
    • United States
    • New Jersey Supreme Court
    • February 4, 1957
    ...the traditional judicial problems of limitations and new causes of action have no bearing whatever. See Gudnestad v. Seaboard Coal Dock Co., 15 N.J. 210, 223, 104 A.2d 313 (1954). Cf. Welsh v. Board of Ed. of Tewksbury Tp., 7 N.J.Super. 141, 72 A.2d 350 (App.Div.1950). And we find no error ......
  • Lokar v. Church of the Sacred Heart, Mount Ephraim
    • United States
    • New Jersey Supreme Court
    • June 24, 1957
    ...381, 40 A.2d 579 (E. & A. 1945); Beck v. Monmouth Lumber Co., 137 N.J.L. 268, 59 A.2d 400 (E. & A. 1948); Gudnestad v. Seaboard Coal Dock Co., 15 N.J. 210, 104 A.2d 313 (1954). An act in disregard of the possessor's duty of care in the use of the land, in proportion to the foreseeable risk,......
  • Miller v. Muscarelle
    • United States
    • New Jersey Superior Court — Appellate Division
    • May 1, 1961
    ...failed in discharging or completing a duty theretofore assumed and commenced.' (Compare the language of Gudnestad v. Seaboard Coal Dock Co., 15 N.J. 210, 224--225, 104 A.2d 313 (1954.) The Franklin opinion 'When the latter situation exists the entire obligation and duty to manage or control......
  • In re Sharps Run Associates, LP
    • United States
    • U.S. District Court — District of New Jersey
    • August 13, 1993
    ...be readily allowed and the doctrine of relation back applied. 54 N.J. at 299, 255 A.2d at 215; See Gudnestad v. Seaboard Coal Dock Co., 15 N.J. 210, 223, 104 A.2d 313, 320 (1954); Cockinos, 259 N.J.Super. at 209, 611 A.2d at The reach of R. 4:9-3 was demonstrated in Aruta v. Keller, 134 N.J......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT