Miller v. Davis & Averill Inc.

• Citation: 137 N.J.L. 671,61 A.2d 253
• Decision Date: 03 September 1948
• Docket Number: No. 36.,36.
• Parties: MILLER v. DAVIS & AVERILL, Inc., et al.
• Court: United States State Supreme Court (New Jersey)

137 N.J.L. 671

61 A.2d 253

MILLER

v.DAVIS & AVERILL, Inc., et al.

No. 36.

Court of Errors and Appeals of New Jersey.

Sept. 3, 1948.

Appeal from Supreme Court.

Action by Walter Miller against Davis & Averill, Inc., a corporation of the state of New Jersey, the Cleveland Tramrail Electric Company, of Newark, the Cleveland Tramrail Newark Company, and the Cleveland Crane & Engineering Company, to recover for injuries. A nonsuit was granted as to certain of the defendants and the action continued against only Davis & Averill, Inc. From an adverse judgment, the plaintiff appeals.

Judgment affirmed.

James A. McTague, of Jersey City, for plaintiff-appellant.

Townsend & Doyle, of Jersey City, for defendant-respondent.

BURLING, Justice.

This is an action at law sounding in tort based upon the alleged actionable negligence of the defendant, Davis and Averill, Inc., a corporation of the State of New Jersey. The sole ground of appeal is that the trial court directed a judgment of nonsuit against the plaintiff and in favor of the defendant, whereas the court should have denied said motion and should have submitted to the jury for decision the questions in the issue. There were two additional parties to the action-Cleveland Tramrail Electric Co. of Newark and Cleveland Tramrail Newark Company. After the opening of the case by the attorneys to the jury, a colloquy occurred between them and the Court. As a result thereof, the plaintiff agreed that the only remaining defendant in the movement of the causes of action was the respondent, Davis and Averill, Inc. At the close of the plaintiff's case a nonsuit was granted as to said defendants (Postea, S C page 13). No appearance is made by the defendant Cleveland Crane and Engineering Company and no explanation appears in the record as to the disposition of the cause of action against it. Although the ground of appeal is addressed to the action of the Court to all defendants, the briefs are addressed only to the action as to the respondent Davis and Averill, Inc., a corporation of the State of New Jersey and the disposition of the appeal will be in accordance therewith.

It is settled law that on a motion for a nonsuit the defendant admits the truth of the plaintiff's evidence and of every favorable inference to be deduced therefrom but denies their sufficiency in law. Applying this principle to the case at hand, the following facts appear: Plaintiff had been employed by the Coca Cola Company at its warehouse at Kearney, New Jersey. Whether the Coca Cola Company was the owner or lessee of the premises in question does not appear from the evidence, as the Coca Cola Company is not a party to the suit. However, this is immaterial as it appears from the pleadings and proof that Coca Cola Company either as owner or lessee had the control of the premises in question. Plaintiff's employment was that of crane operator and had been for five years preceding the event. The crane operated by the plaintiff was on a track that was fixed to the ceiling of the warehouse. This crane consisted of three units, a forward motor, a lift and cab, and a rear motor. The purpose of this mechanism was to enable the crane to travel around the warehouse, picking up and discharging sugar bags.

The equipment had been installed by the defendant seven or eight years preceding the event. It was manufactured by the Cleveland Crane and Engineering Company. On March 24, 1943, defendant contracted with the Coca Cola Company to repair a hanger which supported the rail and did in fact make such repair. On April 24, 1945, while the crane was being operated by the plaintiff, the hanger broke and the track gave way at the hanger in question and plaintiff and the cab were dropped to the floor and the plaintiff was injured.

The stipulation made in Court before the commencement of the reception of evidence set forth that the obligation of defendant was to do a reasonably safe workmanlike job under the contract for repairing.

When the work was accepted by the Coca Cola Company, the contract of repair called for no further service or action by the defendant. Thereafter employees of said Coca Cola Company made weekly inspections of fitness for use for over two years before the event in question.

The gravamen of the complaint is that the defendant undertook to repair the hanger and did so in a careless and negligent manner in that the defendant made an improper welding and the hanger broke as a result thereof.

The trial court directed the entry of a judgment of nonsuit upon the ground that defendant was an independent contractor and not responsible to a third party for injuries resulting from the negligent performance of the work undertaken and further that the work had been completed and turned over to the owner without any obligation of future inspection resting upon defendant under the contract.

The plaintiff's contention is set forth in his brief as follows: ‘The complaint of the plaintiff in this case is one of pure negligence. It is not based upon any contract between the Coca Cola Company and the defendants. The contractors-defendants in this case owed a duty in doing the work that it would be done in a safe manner so that no one using the result of this work would be injured by any negligence in the performance of his work. * * * In the present case the crane was a highly dangerous instrumentality to anyone operating it and riding in the cab, and the failure to attach the crane by proper hangers can certainly put the operator's life and limb in peril. The defendants i...