McGrath v. American Cyanamid Co.

• Citation: 196 A.2d 238,41 N.J. 272
• Decision Date: 16 December 1963
• Docket Number: No. A--40,A--40
• Parties: Lillian McGRATH, as administratrix ad prosequendum of the Estate of Charles E. McGrath, deceased, etc., Plaintiff-Respondent, v. AMERICAN CYANAMID CO. et al., Defendants, and The Glenwal Co., Inc., a New Jersey corporation, Defendant-Appellant.
• Court: United States State Supreme Court (New Jersey)

Page 272

41 N.J. 272

196 A.2d 238

Lillian McGRATH, as administratrix ad prosequendum of the

Estate of Charles E. McGrath, deceased, etc.,

Plaintiff-Respondent, v. AMERICAN CYANAMID CO. et al., Defendants, and The Glenwal Co., Inc., a New Jersey corporation, Defendant-Appellant.

No. A--40.

Supreme Court of New Jersey.

Argued Nov. 19, 1963.

Decided Dec. 16, 1963.

Harvey G. Stevenson, East Orange, for appellant (Stevenson & Willette, East Orange, attorneys).

Harold M. Savage, bloomfield, for respondent.

The opinion of the court was delivered

PER CURIAM.

In connection with its work on a construction job the Glenwal Co., Inc., erected a temporary 'catwalk' over a deep channel or trench, consisting of four-by-fours laid across the cut with planks on top of the four-by-fours and running at right angles to them. The deceased, employed at the job by an unrelated contractor, was killed when a plank up-ended, causing him to fall through the catwalk. His representative obtained a jury verdict. The Appellate Division affirmed, but one judge dissenting, Glenwal appealed further to us as of right. R.R. 1:2--1(b).

Glenwal contends there was no evidence from which it could be found that it (1) owed decedent a duty of due care, or (2) breached that duty. The majority of the Appellate Division found the proof was adequate, and we agree.

Glenwal also urges the record reveals that decedent 'assumed the risk.' The trial court instructed the jury upon that topic and both opinions in the Appellate Division discussed the subject.

In Meistrich v. Casino Arena Attractions, Inc, 31 N.J. 44, 155 A.2d 90, 82 A.L.R.2d 1208 (1959), we pointed out that assumption of the risk was theretofore used in two incongruous senses: in one sense it meant the defendant was not negligent, while in its other sense it meant the plaintiff was contributorily negligent. We said that in truth there are but two issues--negligence and contributory negligence--both to be resolved by the standard of the reasonably prudent man, and that it was erroneous to suggest to the jury that assumption of the risk was still another issue.

It was our hope that after Meistrich the bench and bar would focus upon the true issues, but unhappily some cling to the terminology of assumption of risk and continue to be misled by it even while purporting to think of it as merely a convertible equivalent of negligence or contributory negligence.

Thus, although Glenwal says it urged assumption of risk in the sense of no negligence, it seems to us that the trial court left it with the jury in the sense of contributory negligence and indeed stated it erroneously, the error however running against the plaintiff rather than against Glenwal.

So, also, both opinions in the Appellate Division appear to say that if the deceased appreciated the danger, that appreciation alone would have barred him. Such appreciation, however, would not have sufficed, and this would be clear if the case were approached in uncomplicated terms of negligence and contributory negligence. Thus approached, the issue of defendant's breach of duty would be two-fold: (1) whether the danger was due to a failure to exercise due care or (2) if it was a danger which due care would not have avoided, nonetheless would due care require notice or warning to the decedent. Decedent's appreciation of the danger would be pertinent as to (2), for there would be no need to inform one of a danger he already knows. On the other hand, if the danger was created by defendant's breach of duty, that negligence would not be dissipated merely...