Hustis v. James A. Banister Co.

• Decision Date: 12 June 1899
• Citation: 63 N.J.L. 465,43 A. 651
• Parties: HUSTIS v. JAMES A. BANISTER CO.
• Court: New Jersey Supreme Court

43 A. 651

63 N.J.L. 465

HUSTIS

v. JAMES A. BANISTER CO.

Supreme Court of New Jersey.

June 12, 1899.

(Syllabus by the Court.)

Error to circuit court, Essex county.

Action by Henry H. Hustis against the James A. Banister Company. Judgment for plaintiff. Defendant brings error. Affirmed.

Argued February term, 1899, before MAGIE, C. J., and GARRISON, LIPPINCOTT, and COLLINS, JJ.

H. H. Dawson and R. V. Lindabury, for plaintiff in error.

Samuel Kalisch, for defendant in error.

COLLINS, J. This writ of error removes a judgment recovered on verdict by a servant against his master (a corporation) for personal injuries resulting from an alleged breach of the master's duty to use reasonable care for the safety of the servant. Error is assigned upon exceptions sealed at the trial.

It was in proof that the general care of the mechanical equipment of the defendant's shoe factory in Newark was intrusted to its treasurer, Mr. John W. Denny. Under him was Charles F. Carr, an engineer and machinist, who ran the engine and inspected and repaired all the machinery, reporting to Mr. Denny such defects as he could not himself remedy. In July, 1897, the factory was shut down for general overhauling. Shortly before this a loose coupling had been noticed in a line of heavy overhead shafting, suspended from the ceiling, in a hanger, which line, therefore, received special attention. An expert mechanic, whose firm was called in by Mr. Denny to make examination and repairs, advised that this shafting should be taken down, but, on instructions received indirectly from Mr. Denny, undertook to repair it in place. He testified that he observed a bend in one of the coupled pieces that threw the shaft out of alignment. To remove such a bend firing and straightening is necessary. When called as a witness for the defense, this mechanic testified that he thought the bend *so slight as not to be dangerous; but he admitted that an "excessive" bend would put a strain on hanger and coupling under which they might give way. The repairs were finished July 19th. Witnesses for the plaintiff testified that on Saturday, July 31st, a bolt broke, and fell out of the coupling, and was taken to the engineer, Carr. On the morning of Tuesday, August 30th, another bolt broke, and fell out. This was taken to Carr, who testified that he replaced it at the noon hour. He failed to remember the occurrence of Saturday. On Tuesday afternoon, while the plaintiff was at work sorting shoe soles under this shafting, the coupling gave way, and the hanger broke, letting down a heavy piece of shafting, which struck the plaintiff, and caused the injuries for which he brought suit. There was much other evidence, but the foregoing is all I deem it needful to cite.

Two of the exceptions presented in argument relate to the admission of testimony. The plaintiff was allowed to prove knowledge by the defendant's president of the condition of the shafting previous to its fall. The proof was of the president's admission of such knowledge, and, had the objection been put on the ground that such an admission was not evidential against the corporation, I should think it erroneous to have allowed it to be proved. But such was not the case, and the defendant ought not be heard to complain now of a matter not brought to the attention of the trial judge. The president was afterwards called as a witness, and denied any such knowledge. It was competent to contradict him by proof of his inconsistent admission, and that this was done out of time, although irregular, was not harmful. The other exception was to the admission, on rebuttal, of proof, relative to the character of the plaintiff's injuries, that, it is claimed, should have been offered in chief. Without closely analyzing the evidence, to see if the claim is well founded, it is sufficient, to deny effect to this exception, that the order of proof is always discretionary with the trial judge. Counsel concede this, but complain of an "unlawful exercise of the court's discretion," which seems to me a contradiction in terms. No surprise was pleaded at the trial, nor was time asked to meet the new proof. I find no reversible error presented by either of these exceptions.

Another exception presents the court's refusal to nonsuit the plaintiff, or to direct a verdict for the defendant. The brief recital, above given, of evidence in the cause, amply vindicates such refusal. The case was one for the jury. Refusal to charge certain requests made in behalf of defendant needs no further attention than to say that such requests were hypothetical and partial, and demanded no direct response; the charge that was given on the subjects...