Mooney v. Belleville Stone Co. of N.J.

• Decision Date: 28 February 1898
• Citation: 39 A. 764,61 N.J.L. 253
• Parties: MOONEY v. BELLEVILLE STONE CO. OF NEW JERSEY.
• Court: New Jersey Supreme Court

39 A. 764

61 N.J.L. 253

MOONEY

v. BELLEVILLE STONE CO. OF NEW JERSEY.

Court of Errors and Appeals of New Jersey.

Feb. 28, 1898.

(Syllabus by the Court.)

Error to supreme court.

Action by Henry Mooney against Belleville Stone Company of New Jersey. Plaintiff had judgment which was affirmed in supreme court (38 Atl. 835), and defendant brings error. Affirmed.

Howard W. Hayes and Joseph Coult for plaintiff in error.

Samuel Kalisch, for defendant in error.

DIXON, J. The plaintiff was struck by a piece of rock thrown out by a blast in the quarry of the defendant, and brought this suit to recover compensation for the Injury. At the time he was in the employ of the defendant at the quarry, and was engaged as an attendant upon another workman who was painting a high derrick, and whom the plaintiff raised or lowered so as to facilitate his operations. The blasting was in charge of a foreman, whose duty it was to superintend the preparation of the blast, to light the fuse, and to warn the workmen, by crying "Fire," in time for them to run out of danger. On the occasion in question this warning was not given soon enough to enable the plaintiff to lower the painter to the ground and escape to a place of safety. Under the charge of the trial court and the verdict of the jury, we must regard it as established that the plaintiff's injury resulted from the neglect of the foreman to give timely warning, and without any contributory negligence on the part of the plaintiff. This presents the real question of law in the case, which is whether the negligence of the foreman in this respect is imputable to the defendant the common master of the foreman and the plaintiff. As was said by counsel for the defendant, the judgment must stand or fall on the answer to that inquiry. Under the cases of Steamship Co. v. Ingebregsten, 57 N. J. Law, 400, 31 Atl. 619, and Comben v. Stone Co., 59 N. J. Law, 226, 36 Atl. 473, two views are suggested,—one, on behalf of the plaintiff, that the giving of proper warning was an essential part of the duty, owed by the employer to the workmen, of taking reasonable care that the place where the workmen were engaged should be kept safe, and therefore if, through negligence, the proper warning was not given, the employer's duty was not performed; the other, on behalf of the defendant, that the giving of the warning was only incidental to the foreman's work in preparing the blast and lighting the fuse, in which work the foreman was clearly a fellow servant of the plaintiff, engaged in a common employment, and therefore his negligence in that incidental service was not chargeable upon the common master. On reflection, it will be perceived that the giving of...