Maty v. Grasselli Chemical Co., 6224.
| Decision Date | 02 April 1937 |
| Docket Number | No. 6224.,6224. |
| Citation | 89 F.2d 456 |
| Parties | MATY v. GRASSELLI CHEMICAL CO. |
| Court | U.S. Court of Appeals — Third Circuit |
Mario Turtur, of Elizabeth, N. J., and Francis Shunk Brown, of Philadelphia, Pa., for appellant.
Katzenbach, Gildea & Rudner, of Trenton, N. J. (Carl E. Geuther, of Philadelphia, Pa., Louis Rudner, of Trenton, N. J., and Abel Klaw, of Philadelphia, Pa., of counsel), for appellee.
Before BUFFINGTON, DAVIS, and THOMPSON, Circuit Judges.
This is an appeal from a judgment of the District Court for the District of New Jersey. The plaintiff, the appellant herein, brought suit and recovered a verdict for injuries alleged to have been sustained by him while employed in the chemical factory of the defendant. Upon argument on a motion to set aside the verdict, the parties agreed, in accordance with the court's suggestion, that, if the court ruled against the plaintiff, judgment should be entered for the defendant so as to avoid the necessity for a new trial. The learned trial judge thereupon reviewed the evidence, concluded that the plaintiff had failed to prove knowledge on the part of the defendant, and, relying upon our ruling in Pennsylvania Pulverizing Co. v. Butler (C. C.A.) 61 F.(2d) 311, entered judgment for the defendant.
We do not deem it necessary to review the evidence as to the knowledge of the defendant in view of our conclusion that a verdict should have been directed for the defendant because of the two-year statute of limitations (3 Comp.St.N.J. 1910, p. 3164, § 3). The original bill of complaint was filed October 1, 1935. The plaintiff alleged therein that he was employed as a furnace man in the silicate department of the defendant's plant, that the defendant failed to provide him with a safe place to work, adequate safety standards, and proper ventilation, and that as a result the plaintiff was forced to inhale certain substances which injured his lungs. It was shown by the evidence that sometime in the year 1932 the plaintiff was transferred to the phosphate department. The action based upon negligence in the silicate department was therefore outlawed by the New Jersey two-year limitation period.
At the trial the plaintiff undertook to prove that his injuries were sustained through the negligence of the defendant in the conduct of its phosphate department and obtained leave of court to amend his original bill of complaint so as to conform to the evidence so produced. We think the court should...
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