McCormack v. Standard Oil Co.

• Decision Date: 03 June 1897
• Citation: 60 N.J.L. 243,37 A. 617
• Parties: McCORMACK v. STANDARD OIL CO.
• Court: New Jersey Supreme Court

37 A. 617

60 N.J.L. 243

McCORMACK

v. STANDARD OIL CO.

Supreme Court of New Jersey.

June 3, 1897.

(Syllabus by the Court.)

Action by Peter McCormack against the Standard Oil Company, in which a verdict was directed for defendant. On rule to show cause why a new trial should not be granted. Discharged.

Argued June term, 1896, before BEASDEY, C. J., and GARRISON, LIPPINCOTT, and MAGIE, JJ.

Warren Dixon, for rule.

Charles W. Fuller, opposed.

MAGIE, J. The state of the case shows that the plaintiff claimed that he had sustained an injury on the night of November 8, 1895, by falling from a seat of a truck which he was driving through a public highway, and that his fall was occasioned by the wheel of his truck suddenly dropping into an excavation in the highway, which was left without guard or light to indicate its danger. To charge the defendant with liability for his injury, it was necessary for plaintiff to establish by proof that the excavation which was the cause of his injury was made by defendant. On this subject the plaintiff's case was this: He testified that he observed, at the time of his fall, that there were pipes laid in the excavation. It was admitted that defendant owned the land on both sides the highway where plaintiff claims to have fallen. A witness called for plaintiff testified that he had been employed by defendant from June 22, 1895, up to about January 1, 1896, as a civil engineer in laying out an extension of defendant's plant, and that extension included stills and condensers on the east side of the highway. The plant on that side of the highway was, as part of the plan, to be connected with the defendant's plant on the opposite side of the highway, by pipes to be laid under the highway. The witness was not clear as to any particular time, but he had at some time during his employment seen trenches in the highway; whether any were there on November 8th he could not testify. Upon this evidence, the trial judge was asked to nonsuit plaintiff, on the ground that it was insufficient to establish the fact that defendant had made the excavation in question. This request was refused, and, I think, rightfully; for, although it did not directly evince the excavation to have been made by defendant, yet it justified an inference that in carrying out its plan, which included the laying of pipes in excavations in the highway, the excavation therein, which plaintiff claimed had pipes laid in it, was made by defendant. Defendant thereupon called witnesses in its defense, who were in its employ during the execution of its plan for extending its plant, of which the civil engineer called by plaintiff had testified. These witnesses declared that they had charge of the execution of the plan, and of laying the pipes across the highway. All of them united in testifying that the first excavation made for that purpose was on November 14, 1895. Their recollection was fortified by reference to time slips and work reports made by them at the time. There was no contradiction of their testimony, and they stood unimpeached. The case before the court, then, stood thus: The inference that defendant had opened the excavation into which plaintiff said he fell on November 8, 1895, which...