Ondis' Adm'x v. Great Atl. & Pac. Tea Co.

• Citation: 81 A. 856,82 N.J.L. 511
• Parties: ONDIS' ADM'X v. GREAT ATLANTIC & PACIFIC TEA CO.
• Decision Date: 22 November 1911
• Court: United States State Supreme Court (New Jersey)

81 A. 856

82 N.J.L. 511

ONDIS' ADM'X

v. GREAT ATLANTIC & PACIFIC TEA CO.

Court of Errors and Appeals of New Jersey.

Nov. 22, 1911.

(Syllabus by the Court.)

Error to Circuit Court, Hudson County.

Action by Ondis' Administratrix against the Great Atlantic & Pacific Tea Company. Judgment for plaintiff, and defendant brings error. Affirmed.

Griggs & Harding, for plaintiff in error. McDermott & Enright, for defendant in error.

VREDENBURGH, J. Ondis, the plaintiff's intestate, was at work for the defendant in an uncovered pit or trench, about five feet deep from the surface of the ground, under the sidewalk curb adjacent to its warehouse premises, in Jersey City, and was killed by the sudden revolution of a powerful screw under his feet, which, in revolving, caught his legs and clothing, and almost instantly tore off his feet.

The deceased was engaged, in obedience to the orders of Mr. Parker, the superintendent of construction and machinery of the company, in bailing water from the bottom of the pit in which he stood, by reaching down and filling pails with water, which he then handed up to Mr. Parker, who was within his reach upon the adjoining bank. In order to retain his footing so as to accomplish this work, he stood within the pit, either upon, or very close to, this screw, which was then stationary, and partly inclosed in a U-shaped iron trough underneath the screw, and in which, when in motion, the screw turned.

The screw was revolved by electrical motors, operated and controlled from a switchboard by the engineer in his engine room, at a distance (not stated in the evidence) away from the pit, but completely out of the sight of any person, whether standing in the pit or on the bank adjoining it. Neither the engineer while in his engine room, nor the employé while in or at the pit, could see each other, nor was there any mechanical or other means of signaling between them.

The place in the pit where Ondis stood while bailing the water was entirely safe, so long as the electrical power was off, and the machinery and screw consequently were at rest; but the instant the power was turned on and the screw revolved his position became one of immediate peril to his life. It is clear from the engineer's testimony that he was fully aware this machinery could not be started without extreme danger of fatal consequences to the man in the pit. This knowledge that officer expressly admitted. By these admissions it appears that Ondis had, on occasions previous to the accident, worked in the pit. The engineer testified that on these occasions he would always find out where Ondis was before he would start the machine; that, if Ondis was bailing water, when he got through with his job he (Ondis) would either come from the pit and tell him (the engineer) that the water was all out, or, if not, that he himself would go out and see Ondis, and see that everything was all right, and then come in and start it; "that he would go out there every time and look if the work was done, because he knew what it was, and knew the piece of machinery it was, and didn't want to see any man there; * * * and that he never turned on the power until he had ascertained in that way that everything was right."

It is thus evident that on all previous occasions when Ondis had occupied the pit, except the fatal one, the engineer's universal practice before starting the machinery had been to find out, either from his own view, or by the presence and statements of Ondis to him, that the latter had left the pit, and this course of practice Ondis must be presumed to have relied upon for his safety. But on the occasion of the accident the engineer, instead of first obtaining personal knowledge of the situation of Ondis, obeyed the order sent to him by Superintendent Parker to start the machinery.

The jury were warranted in finding from the testimony of three eyewitnesses of the occurrence, who were in close proximity to the pit, that Ondis was still standing in the pit, either upon, or in very close contact with, the screw, when it revolved after the machinery had been started. Not only so, but the very nature of the injuries inflicted upon the body of Ondis demonstrated this fact. The person who rescued him from the machinery after the accident said that he was obliged to cut intestate's flesh and clothing in disentangling him from the blades of the screw. These eyewitnesses also testified that no notice or warning of the starting of the machine was given by any one in their hearing to Ondis before the accident.

It is true that Superintendent Parker, in his testimony, says that before he sent the order to the engineer to turn on the power (which he admits he gave) he had "told Ondis to get out of the pit"; * * * that he "had given him a hand to pull him upon the bank, and saw him upon the bank"; but the jury were plainly justified in coming to a contrary conclusion.

It is but just to the superintendent, in view of his testimony, to add that when he sent the order to the engineer to start the machinery he probably supposed that Ondis had gotten fully out of the. pit upon the...