Pfeiffer v. Dialogue

• Decision Date: 18 June 1900
• Parties: PFEIFFER v. DIALOGUE.
• Court: New Jersey Supreme Court

46 A. 772

64 N.J.L. 707

PFEIFFER

v. DIALOGUE.

Court of Errors and Appeals' of New Jersey.

June 18, 1900.

(Syllabus by the Court.)

Error to supreme court.

Action by Charles Pfeiffer against John H. Dialogue. Judgment of nonsuit, and plaintiff brings error. Affirmed.

William B. Knight and Samuel H. Richards, for plaintiff in error. George Reynolds, for defendant in error.

VREDENBURGH, J.The trial at the Camden circuit of this cause resulted in a direction by that court of an entry of nonsuit, and from the judgment in the supreme court thereon this writ of error is prosecuted. The plaintiff, having been called as a witness on his own behalf, testified as follows: "I was putting bolts in on the side of the vessel, and I wanted to go around on the other side to work at something else, and as I went around on the other side I slipped and fell. Question. What slipped? Answer. I was about the middle of the plank, and the plank went down. Question. Then the plank slipped and fell from the scaffolding, and you broke your arm? Answer. Yes." The suggestive and leading character of this examination of this interested witness is thus apparent, and casts more than a doubt upon a point which is vital to the plaintiff's case. As it stands upon the record, it is by no means clear, from the plaintiff's sworn version of the accident, that his fall was not entirely attributable to his own slip or misstep on the scaffold, and not at all due to the alleged defective construction of the scaffold. But, aside from this consideration, and upon the assumption that the plank on which he was walking slipped before he slipped, because it was not securely fastened or nailed, we think the nonsuit was properly directed. No defect in the materials used for the scaffold appears, nor that the defendant in person took any part in its construction; but the evidence clearly shows that the platform or scaffold, which was a temporary and movable one, to be increased in height as the work progressed, was constructed by carpenters, who must be regarded, under the evidence, as fellow workmen, with whom the plaintiff was engaged in a common employment, and subject to risks common to all of them. All these workmen, whether ironworkers or carpenters, were employed in the common undertaking of constructing the vessel. Even if the platform had been negligently erected, as claimed, the defendant cannot be held responsible in damages, under the many firmly-settled adjudications of our courts,...