Holmes v. Pelligrino

• Citation: 133 A. 194
• Decision Date: 17 May 1926
• Docket Number: No. 84.,84.
• Parties: HOLMES v. PELLIGRINO.
• Court: United States State Supreme Court (New Jersey)

133 A. 194

HOLMES

v. PELLIGRINO.

No. 84.

Court of Errors and Appeals of New Jersey.

May 17, 1926.

(Syllabus by the Court.)

Appeal from Supreme Court.

Action by Abram Holmes against Stephen Pelligrino for personal injuries. Judgment for defendant, and plaintiff appeals. Affirmed.

Feder & Rinzler, of Passaic (Edward A. Markley, of Jersey City, of counsel), for appellant.

Rosenkrans & Rosenkrans, of Paterson, for respondent.

KAYS, J. The plaintiff, Holmes, sued the defendant, Pelligrino, for injuries received by him due to the fall of a scaffold. The facts disclosed by the evidence are as follows:

Holmes was an employee of one Cornelius Schlossman. Cornelius Schlossman had entered into a contract with the defendant, Pelligrino, to construct a ceiling of plaster board in a building owned by the defendant, Pelligrino. This ceiling was about 18 feet from the floor. In order to nail the plaster board to the ceiling it was necessary to erect a scaffold. Pelligrino, the defendant, brought to the building the planks to be used in the construction of the scaffold, and which were about 12 feet in length and 8 inches in width and 2 inches in thickness. He also brought some wooden horses upon which to place the planks. When these planks and wooden horses were delivered to the building the defendant, Pelligrino, decided that the work should be hastened as much as possible, and told Peter Schlossman, a brother of the contractor, Cornelius Schlossman, and in charge of the work of building the scaffold, to put it up and get it ready so that the employees of Cornelius Schlossman could begin work, stating that he did not want Cornelius Schlossman to come there and say that he was holding up the work because the scaffold had not been erected. Peter Schlossman then erected the scaffold. This was done by inserting planks lengthwise from one horse to another, and then putting cross planks over the planks which were laid lengthwise. The plaintiff, Holmes, then went on the scaffold. He worked on it January 16, 1925, and on January 21st of the same year. While he was at work on the scaffold on said January 21st a plank broke, and he fell to the concrete floor, injuring himself rather severely.

As a result of the accident Holmes brought suit against the defendant, Pelligrino. Cornelius Schlossman was an independent contractor and had a contract with the defendant. Abram Holmes and. Peter Schlossman were employees of the said Cornelius Schlossman, the independent contractor. The complaint alleges that the defendant failed to use reasonable care to maintain the scaffold in a reasonably safe condition, and should have known that the scaffold Was not in a reasonably safe condition for the purpose for which it was intended to be used, and therefore that it was the defendant's negligence which caused the injury to the plaintiff. There was no evidence produced on behalf of the plaintiff as to what defect, if any, existed in the plank to cause the accident. The plaintiff urges that the doctrine of "res ipsa loquitur" applies, and cites the following cases: Van Winkle v. American Steam Boiler Co., 52 N. J. Law 240, 19 A. 472; Piraccini v. Director General, 95 N. J. Law, 114, 112 A. 311, 36 A. L. R. 294; and Heckel v. Ford Motor Co. (N. J. Err. & App.) 128 A. 242, 39 A. L. R. 989, and several other similar cases.

The defendant, however, claims that there was no breach of any duty owing by the defendant to the plaintiff, citing the case of Bahr v. Lombard, Ayres & Co., 53 N. J. Law, 233, 21 A. 190, 23 A. 167, and also the case of Levendusky v. Empire Rubber Manufacturing Co., 84 N. J. Law, 698, 87 A. 338, Ann. Cas. 1914D, 969. In the last mentioned case the plaintiff was injured by the explosion of a machine while he was employed by the defendant and was walking along a highway on his way to work. The plaintiff in that case offered no other evidence than the mere occurrence of the accident, and contended that this was sufficient to establish a prima facie case.

The court, in disposing of a motion for nonsuit in the case under review, held that the duty of the defendant did not go beyond the reasonable inspection of the material that he furnished, and that there was no proof that such a reasonable inspection would have disclosed any defects in the plank. There was nothing in the evidence to show that it was the duty of the defendant to erect the scaffold. As a matter of fact the scaffold was erected by a fellow servant of the plaintiff, which fellow servant was an employee of the independent contractor, Cornelius Schlossman. The most that can be...