Hardy v. Del., L. & W. R. Co.
| Decision Date | 21 February 1895 |
| Parties | HARDY v. DELAWARE, L. & W. R. CO. |
| Court | New Jersey Supreme Court |
(Syllabus by the Court.)
Error to court of common pleas, Essex county; Kirkpatrick, Judge.
Action by Walker B. Hardy against the Delaware, Lackawanna & Western Railroad Company. Judgment for defendant, and plaintiff brings error. Reversed.
Argued November term, 1894, before BEASLEY, C. J., and DEPUE and VAN SYCKEL, JJ.
Flavel McGee, for plaintiff.
McCarter, Williamson & McCarter, for defendant.
VAN SYCKEL, J. The defendant, desiring to erect a bridge over Passaic avenue in the township of Harrison, made a contract with the Passaic Rolling Mill to furnish the iron that was necessary for the structure, at a specified price, according to the plans and specifications furnished by the defendant The rolling mill was also employed by the defendant to do the work of erecting the bridge. No price was agreed upon, other than that skilled workmen were to be furnished by the rolling mill to do the work, the defendant to pay the rolling mill for their work at a price stated in the contract. This suit is brought by the plaintiff to recover damages from the railroad company for injury done to him, while working on the bridge under this contract, by the alleged carelessness of the engineer of the defendant in running a train of cars over the bridge. The plaintiff was nonsuited in the trial court on the ground that he was a fellow workman with the engineer of the train. The case of Ewan v. Lipplncott, 47 N. J. Law, 192, was relied upon to support that ruling. In that case the plaintiff and the engineer of the mill owner were working to a common end. If the mill owner had directly employed both, there could have been no doubt that they were fellow servants. It made no difference that one was employed through a third person. That case carries the doctrine which bars recovery by a coservant to its extreme limit. The case before us can, I think, be distinguished.
The plaintiff was a regular employe of the rolling-mill company. He was paid by that company, and during the progress of the entire work, and on the day of the accident he and those working with him were, as they testify, under the control and supervision of an employe of the same company. It is true that the engineer of the railroad company had general supervision of the work which was to be done by the rolling mill, but so far as appears, he never assumed or attempted to exercise the authority of a...
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