Knutter v. N.Y. & N. J. Tel. Co.

• Decision Date: 16 June 1902
• Citation: 67 N.J.L. 646,52 A. 565
• Parties: KNUTTER v. NEW YORK & N. J. TEL. CO.
• Court: New Jersey Supreme Court

52 A. 565

67 N.J.L. 646

KNUTTER

v. NEW YORK & N. J. TEL. CO.

Court of Errors and Appeals of New Jersey.

June 16, 1902.

(Syllabus by the Court.) terror to supreme court.

Action by Daniel Knutter against the New York & New Jersey Telephone Company. Judgment for plaintiff. Defendant brings error. Reversed.

Edward A. & William T. Day, for plaintiff in error.

Willard P. Voorhees. for defendant in error.

PITNEY, J. The plaintiff was a lineman in the employ of the defendant, and brought this action to recover damages for personal injuries sustained by him while engaged in the performance of his duties. At the time of the occurrence in question he was working in company with two other linemen, one of whom, named Chamberlain, was the foreman. They were putting up a line of wire upon poles in the streets of Somerville for the purpose of making a connection between the residence of a subscriber and the central telephone exchange in that town. One Runyon was with the party, and bad general charge of its operations, besides participating actively in the work, lie was called the "district manager," and there was evidence from which the jury had a right to infer that he had general charge of the telephone exchanges of the defendant at Westfield, Plainfield, Bound Brook, and Somerville, and of the lines communicating with each exchange, and the lines connecting the several exchanges together, and that he was intrusted with the hiring and discharging of all employes within the territory indicated. Runyon himself was called as a witness for the defendant, and testified that his duties were "to overlook all the work, and help out if they were pushed." He said: "I look after the whole business,—everything that goes on; sometimes have to go up poles." The evidence, in short, tended to show that he was in general charge of defendant's business throughout the district in question, occupying a position of superiority over all the linemen, yet engaging at times personally in the work of line construction. As to the cause of the accident, plaintiff's evidence was to the effect that under the immediate supervision and command of Runyon, the manager, plaintiff ascended a pole, and stepped from it into the branches of a neighboring tree, about 20 feet above the ground; that Runyon stood upon the ground with the wire in his hand; that it was necessary to throw or swing the wire over a limb of the tree, in order that the wire might be raised to its proper position upon the poles; that thereupon Runyon directed the plaintiff to bear down upon the limb, in order to enable him to throw the wire over it Plaintiff complied, and Runyon succeeded in getting the wire over the limb, but it caught upon a twig. Runyon then directed the plaintiff to get hold of the wire, and place it where it should go. Plaintiff at this time was standing upon the same limb on which the wire was lodged, and was preserving his balance by the grasp of his hand upon a limb that extended over his head. In obedience to Runyon's command, plaintiff "reached out upon the limb for the wire," when Runyon suddenly and without warning pulled down upon the wire, breaking the limb and precipitating the plaintiff to the ground. For the injuries thus received, he sued his employer in the present action. Plaintiff claimed that the limb would have borne his weight, had it not been for the added strain caused by Runyon's act in pulling upon the wire; the insistment being that this was negligence for which the employer was liable. There was no dispute-as to the relation occupied by Runyon to the general business of the defendant company; nor was it disputed that he was co-operating with the gang of lineman, and at the same time guiding and directing them in their work. It was denied that Runyon had caused the plaintiff's fall by pulling down upon the wire or otherwise, but upon this point there was sufficient evidence to go to the jury. There was a motion to nonsuit, and a motion that the jury be directed to render a verdict in favor of the defendant. Both were denied. One of the grounds on which these motions were based was that Runyon was a fellow servant engaged in a common employment with the plaintiff, so that for his negligence the common employer could not be held liable. A request made by the defendant that the trial judge should instruct the jury that Runyon was a fellow servant of the plaintiff, so that for his negligence the plaintiff could not recover, was also refused. On the other hand, the court charged the jury that it was for them to determine from the evidence whether Runyon was a fellow workman of the plaintiff, or was an official of the defendant company for whose acts it should be held liable, at the same time giving the jury to understand that from the fact that Runyon, in respect to the work in question, was the superior and manager, the others being subject to his orders, and that by his orders the plaintiff was sent into the tree, the jury would have a right to find that Runyon was an official of the defendant company, in such a sense that the company should be held responsible for his acts, if negligent in any way. The jury having rendered a verdict in favor of the plaintiff, and judgment having been entered thereon, the defendant now assigns for error the abovementioned rulings of the trial judge, and that part of his charge just referred to.

The only question requiring consideration is whether the defendant can he held liable at the plaintiff's suit for the negligence of Runyon, in view of the familiar rule of law that exempts the master from liability for personal injuries received by one of his servants in consequence of the carelessness of another, while both are engaged in the common em ployment. It is manifest that, in order to sustain this judgment, we must hold that Runyon, by reason of being a district manager, placed by the defendant in entire charge of its plant, working force, and...