Kulinka v. Flockhart Foundry Co.

• Decision Date: 12 September 1950
• Parties: KULINKA v. FLOCKHART FOUNDRY CO.
• Court: New Jersey County Court

Page 495

9 N.J.Super. 495

75 A.2d 557

KULINKA v. FLOCKHART FOUNDRY CO.

Essex County Court, Law Division,

New Jersey.

Sept. 12, 1950.

Sara M. Lewitt and Alexander Avidan, Newark, for petitioner-appellant.

James J. Carroll and Frank Fink, Newark, for respondent-appellee.

FRANCIS, J.C.C.

The appeal here is from the dismissal of appellant's petition for workmen's compensation by the Workmen's Compensation Division of the Department of Labor.

The claim for compensation was presented by Helen Bujalski as guardian ad litem of the employee, Alex Kulinka. Prior to the hearing Kulinka had been committed to Greystone Park for mental incapacity which apparently resulted from the severe head injuries suffered in the accident out of which the action arose. However, no determination was made below on the subject of disability and the extent thereof, the parties having agreed that the issue of liability be disposed of first.

The petition, as amended, sought compensation for Kulinka, alleging that on February 10, 1945, during the course of his regular work for respondent, he fell from a crane and was injured. While the case was tried below primarily on the defense of intoxication, the answer sent here with the record does not plead any such defense. Paragraph 37 of the answer which was filed on July 19, 1945 says: 'If you deny that compensation is payable in this case, explain your reasons for this conclusion.' To this respondent pleaded: 'Respondent denies petitioner suffered compensable accidental injury and leaves petitioner to full proof of all claims set forth in the petition.'

At the hearing respondent amended this paragraph of the answer to read as follows: 'Respondent denies that petitioner suffered a compensable accidental injury and leaves petitioner to prove all claims set forth in the petition; that any disability or injury for which the employee, Alex Kulinka, may at this time be suffering from was the proximate and direct cause of any accident on February 10, 1945.'

Neither of these allegations constitutes a pleading of the statutory affirmative defense that intoxication was 'the natural and proximate cause of injury.' R.S. 34:15--7, N.J.S.A.

However, since the case was fully tried by the parties on the issue of intoxication, without objection, it must be treated on appeal as if such issue had been pleaded properly.

For a number of years prior to the date of this accident respondent operated a foundry at Polk Street, Newark, New Jersey. The plant covered a square block in area.

Kulinka had worked there for about eight years. On the day of the mishap he was operating a crane. Pictures indicate that the cabs of these cranes moved along an elevated track which apparently ran for some distance through the building. To get into the cab it was necessary to go up a narrow iron ladder to a point opposite its elevated position, then step across the three foot space to the floor of the cab and climb over the top rail which was about three feet above the floor.

In the morning Kulinka worked with a fellow employee, Robert Mincy. Mincy was the ground man. During the morning they operated a crane which was suspended about 12 feet from the floor. The floor of its cab extended about 12 inches beyond the sides. This extension formed a ledge so that when the operator desired to get into the cab he would step from the ladder to this ledge, hold onto the top rail and climb over the rail.

This was the first time Mincy had ever worked with Kulinka. However, during the morning everything went 'nicely'; Kulinka was a 'good working man' and did a good job. He came down from the crane and left the building 'a couple of times.' Where he went and whether or not it was to the rest room, which was out of the building, Mincy did not know. And 'a couple of times' when he was not busy he would 'lie down on the crane.' At no time during the morning did Mincy see him drink anything.

They quit work for lunch at 11:30 and Kulinka descended from the crane without difficulty. The lunch period was one-half hour and they had orders to work on a different crane in the afternoon. After lunch they were to meet at the place in the foundry where the other crane was located.

Petitioner's proof is to the effect that on leaving the plant he went to a nearby tavern. There, according to the proprietress, he had two one-ounce glasses of whisky and one glass of beer and he ate a sandwich. He remained about a half hour when the plant whistle blew, at which time he got up and walked out of the place, obviously to return to work. The proprietress, who served the drinks, said he walked in properly and walked out the same way.

Petitioner produced another fellow employee, Herbert Williams, who said he too had ceased work for lunch and had come into the tavern shortly after 11:30. Kulinka was there when he came in. Williams remained about 15 minutes and left. During this time Kulinka had one drink of whisky and one glass of beer.

Williams left the tavern at the end of the 15 minute period because he was drunk. He had brought a bottle of liquor to work with him this morning and had been imbibing. Kulinka did no work with him and had none of the liquor. So on his arrival at the tavern he was 'very near drunk.' After having two drinks and one glass of beer he was drunk and returned to the dressing room of the plant to sleep. He was found there by his superior and sent home.

It is quite obvious that his conceded drunkenness empties his testimony of any substantial probative force. In any event, respondent produced and used on cross-examination a signed statement which had been given by him on May 3, 1946, more than a year after the accident. Williams was unable to read or write English but could sign his name. The statement was taken by an investigator who had Mincy read it to him before his signature was affixed.

This statement, which was later put in evidence, says that at the tavern, while Williams was there, he, Kulinka and one Frank Lotush each had nine drinks. Each of them bought three rounds of drinks. He denied saying this and further said that he could not have bought any drinks as he had no money.

This statement, while usable on cross-examination to attack the credibility of the witness and admissible in evidence for that purpose, provided no substantive evidence whatever of Kulinka's drunkenness. And it could not be considered as such evidence. Link v. Eastern Aircraft, 136 N.J.L. 540, 57 A.2d 8 (E. & A.1948); Goglia v. Janssen Dairy Co., 116 N.J.L. 396, 184 A. 814 (E. & A.1936); Mucking v. Hubbs, 128 N.J.L. 395, 26 A.2d 286 (E. & A.1942); Rhodehouse v. Director General, 95 N.J.L. 355, 111 A. 662 (Sup.Ct.1920). Wigmore on Evidence, Vol. 3, Sec. 1018, p. 688; 28 R.C.L. Sec. 219, p. 633; 58 Am.Jur. Sec. 770, Title, Witnesses.

The rule is tersely stated in Wigmore, supra, as follows: 'It is universally maintained by the courts that prior self-contradictions (of witnesses) are not to be treated as having any substantive or independent testimonial value.' Insertion mine; Link v. Eastern Aircraft, supra.

Ruling Case Law, supra, says: 'One of the methods most frequently resorted to for the purpose of discrediting a witness is to show that he made prior statements which are inconsistent with or which contradict his testimony at the trial. * * * It is to be noted, however, that contradictory statements are admissible solely to impeach the witness, and for no other purpose. They are ineffective as direct and affirmative proof of the facts to which they relate.'

As understood between them, Kulinka returned to the plant and met Mincy at about 12:05 P.M., 20 feet or so from the crane at which they were to work during the afternoon. While walking toward the ladder to be used for the ascent to the cab, Kulinka tripped and fell over some scrap pieces of castings. As Mincy helped him to his feet he said: 'I am drunk like son of a bitch.'

No objection was offered at the hearing to the admission of this statement. However, the argument is now made, albeit not very strenuously, that it is not evidential. But any admission of this character made in reasonable proximity to the particular event, which throws light on the subject of sobriety or insobriety is relevant and material.

Mincy asked Kulinka if he was too drunk to operate the crane, to which he replied that he could operate it all right. Then they proceeded toward the crane.

The crane Kulinka had been directed to operate this afternoon was not the one he used regularly. Its mechanism was different; it was located 15 to 20 feet above the ground and, undoubtedly, most significant of all, it did not have the 12 inch ledge or projection from the floor and beyond the sides, as had the one used in the morning. As already indicated, this projecting ledge provided a place for the operator to put his foot when stepping from the ladder to the cab of the crane. With this ledge as a standing place it was a comparatively simple matter for the operator to put one leg after the other over the three-foot high side of the cab.

The photograph shows that the side of this crane nearest the ladder was only partially enclosed. Looking at the cab from the ladder the part of the side nearest the ladder was open from top rail to floor for a distance of about one and a half to two feet. This measurement does not appear in the record but the height from the floor to the top rail is fixed at about three feet and the open space referred to at the side appears to be about half that distance.

So, to get in this cab the operator had to step from the ladder to the open space at the side, place his feet, not on a projection, but on the floor itself, and then, while holding on to the top rail, climb over the side.

Kulinka walked to the ladder, climbed up the 18 inch apart rungs in what appeared to Mincy to be a normal manner and then stepped from the ladder through the open space in the side to the floor of the cab,...