Lydecker v. Bd. of Chosen

• Court: United States State Supreme Court (New Jersey)
• Writing for the Court: BERGEN, J.
• Citation: 103 A. 251,91 N.J.Law 622
• Decision Date: 04 March 1918
• Parties: LYDECKER et al. v. BOARD OF CHOSEN FREEHOLDERS OF PASSAIC COUNTY et al.

103 A. 251
91 N.J.Law 622

LYDECKER et al.
v.
BOARD OF CHOSEN
FREEHOLDERS OF PASSAIC
COUNTY et al.

Court of Errors and Appeals of New Jersey.

March 4, 1918.

(Syllabus by the Court.) (Additional Syllabus by Editorial Staff.)

The Chancellor and Swayze, Garrison, Trenchard, Minturn, and Kalisch, JJ., dissenting as to Standard Oil Company.

Appeal from Supreme Court.

Action by John J. Lydecker and others against the Board of Chosen Freeholders of Passaic County and the Standard Oil Company of New Jersey. From a judgment of nonsuit in favor of the county, and a verdict in favor of the Standard Oil Company, plaintiffs appeal. Judgment in favor of both defendants affirmed.

Ward & McGinness, of Paterson, for appellants. J. W. De Yoe, of Paterson, for respondent Standard Oil Co. of New Jersey. Pierre P. Garven, of Jersey City, for respondent Board of Chosen Freeholders.

BERGEN, J. This action was instituted by an infant to recover for injuries caused by being thrown from his bicycle while riding along a public highway recently covered with oil by the defendant the Standard Oil Company of New Jersey, under a contract with the board of chosen freeholders of the county of Passaic, which had control of the highway and was under a duty to keep it in repair. The action was brought against the county of Passaic and the Standard Oil Company of New Jersey, and at the trial the proceedings were amended to include a claim by the father of the infant for the cost of medical services. The trial court directed a judgment of nonsuit in favor of the county, and a verdict in favor of the Oil Company, as to both plaintiffs, from which they appeal.

The complaint states different causes of action against each defendant; that against the Standard Oil Company being that it entered into a contract with the county in which it agreed to oil certain public roads with a preparation of oil, to protect the road from traffic for at least six hours after placing the oil, or until the oil had permeated the surface of the road, and to oil but one side at a time, and leave the other open to traffic until the oil spread on the other side had sufficiently penetrated the roadbed to allow traffic on it; that in violation of the agreement the defendant the Oil Company negligently and improperly placed the oil over the entire

103 A. 252

surface of the road in large and excessive quantities, so that it did not penetrate the roadbed, but rendered the surface slippery and dangerous, and failed to close the road to traffic, or warn persons using it of its dangerous condition.

The only negligence averred in the complaint against the Oil Company is a violation of the contract in the foregoing particulars. The contract also provided that the oil should be distributed, by means of a suitable sprinkler satisfactory to the county engineer or supervisor, at not more than one quarter gallon per square yard. There was evidence from which a jury might infer that the quantity of oil which the contract provided for was more than was necessary to accomplish the required purpose, but; none that it was in excess of that required by the contract, or that the distribution was not made as required by the contract. It is well settled in this state that no duty to the plaintiff from the defendant the Oil Company arose out of the contract, as he was a stranger to it, and also that he cannot complain if the parties to it chose to alter the contract, and distribute oil over the entire surface of the road at one time, instead of one-half of it. Such a change, if made under the direction of the county and with its consent, was a matter which did not concern the plaintiff. Marvin Safe Co. v. Ward, 46 N. J. Law, 19; Styles v. Long, 70 N. J. Law, 301, 57 Atl. 448.

In his complaint the plaintiff relies upon a violation of the contract, which the proof did not sustain. To hold a contractor liable for an injury to a third person because of negligence in the execution of his contract, there must be a duty or liability, independent of the contract, due from the contractor to the person injured. Marvin Safe Co. v. Ward, supra, where it was said:

"Such a contract creates the ordinary relation of employer and employe. It does not put off from the board of chosen freeholders the duty and responsibility which the statute fixes upon them; nor does it create any duty or liability on the part of the other contracting party, except such as arises inter sese from the terms of the contract. * * * No injustice can arise from the application of the principle adjudged in Winterbottom v. Wright [10 M. & W. 109]; for, if the work contracted for be such as that a duty exists towards third persons with respect to it, the party who contracts to have the work done will be liable for damages arising from a breach of the duty, although the injury arose from...