Olsen v. Nixon
| Decision Date | 20 June 1898 |
| Citation | 40 A. 694,61 N.J.L. 671 |
| Parties | OLSEN v. NIXON. |
| Court | New Jersey Supreme Court |
(Syllabus by the Court.)
Error to supreme court.
Action by Knute Olsen against George Nixon. Plaintiff was nonsuited, and brings error. Affirmed.
John T. Dunn, for plaintiff in error.
Edwin A. S. Lewis, for defendant in error.
The question raised under this writ is as to the legality of the action of the trial judge at the Union circuit in granting a nonsuit at the close of the plaintiff's case. The plaintiff in error brought suit in that court against the defendant in error to recover damages for injuries sustained by the former as the result of a fall from a scaffold erected in the defendant's shipyard at Elizabethport, about the hull of a ferryboat, then in course of construction. The accident appears to have occurred by the giving way of a crosspiece nailed to two upright poles, that bore one end of the planks used for the scaffold, because of negligent construction. The scaffolding extended all around the boat, and was built in the manner indicated. The plaintiff, with several others, was on this part of the scaffold, engaged in moving the planks around from one side of the boat to the other, when it gave way under the strain, and plaintiff fell. The defendant insisted, as a ground for nonsuit, that the accident was caused by the negligence of a fellow servant, for which the defendant, as the common master, could not be held.
The proofs offered by plaintiff tended to show that the plaintiff was a ship carpenter, and as such was employed at the time of his fall, with other servants of the defendant, ship carpenters, platers, and riveters, in the work of construction; that the defendant had not undertaken to furnish the scaffold or supervise its construction, but that the erection of the scaffold, and the adjusting of it to the needs of the work, by elevating it or lowering the planking as the work progressed, was a part of the service exacted of the carpenters by the defendant, and which they were accustomed to perform in the regular line of their duty; that there was a foreman in charge of the work at the time, who was also a ship carpenter engaged with the others in the common employment; and that these facts were known to the plaintiff at the time of the accident. There was no proof that the defendant had furnished improper materials, or that he had been in any way negligent in the selection of the ship carpenters or others so employed.
The natural sequence from these facts, with the law applied, would seem to be that a case had' arisen which was within the exception to the general rule of the master's liability for the negligence of his servant, and that the doctrine of the negligence of fellow servant was applicable. Such is the recognized doctrine in this and other jurisdictions. The case of Maher v. McGrath, found in 58 N. J. Law, 469, 33 Atl. 945, seems to be distinctly in point, and to be scarcely distinguishable from the present case. It was a suit for injuries received by a fall from a scaffold built by the fellow workmen of the plaintiff, about the building on which they were at work, caused by the giving way of one of the bearers supporting the planks, as a result of negligent construction. The present chief justice delivered the opinion of the supreme court in that case, enunciating and sustaining the principle to which I have just alluded. For further recognition of this doctrine, see 1 Shear. & B. Neg. (5th Ed.) 234; Beach, Contrib. Neg. 98; 7 Am. & Eng. Enc. Law, 821; Whart. Neg. 224.
Nor is the operation of this rule modified or interfered with on the ground that the work upon the boat was being done under the direction of a foreman, acting as a vice principal.
The general doctrine that the master is to be held liable for injury to his servants, through the negligence of an agent or middleman, under whose absolute control he places them, has no application to this case. There was indeed a foreman, but the evidence is that, as a ship carpenter, he was engaged in the common employment with the other servants. When this is so, then the foreman is not a vice principal, but a fellow servant, with the others, and for his negligent acts the master is not responsible. O'Brien v. Dredging Co., 53 N. J. Law, 291, 21 Atl. 324; Steamship Co. v. Ingebregsten, 57 N. J. Law, 400, 31 Atl. 619; Maher v. Thropp, 59 N. J. Law, 186, 35 Atl. 1057; McLaughlin v. Iron Works (N. J. Err. & App.) 38 Atl. 677; Railroad Co. v. Peterson, 162 U. S. 346, 16 Sup. Ct. 843.
But the plaintiff in error does not, as I understand it, deny the doctrines here stated, nor their general application to the facts of the pending case. He insists, however, that under the evidence it appears that the negligent construction which caused the injury took place before the plaintiff entered into his contract of employment...
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