Reiter v. Max Marx Color & Chemical Co.

• Decision Date: 27 September 1960
• Docket Number: No. A--650,A--650
• Parties: William REITER, Plaintiff-Appellant, v. MAX MARX COLOR & CHEMICAL CO., Defendant-Respondent.
• Court: New Jersey Superior Court — Appellate Division

Page 410

67 N.J.Super. 410

170 A.2d 828

William REITER, Plaintiff-Appellant, v. MAX MARX COLOR & CHEMICAL CO., Defendant-Respondent.

No. A--650.

Superior Court of New Jersey, Appellate Division.

Argued Sept. 13, 1960.

Decided Sept. 27, 1960.

Francis Sorin, Jersey City, for plaintiff-appellant.

H. Curtis Meanor, Jersey City, for defendant-respondent (Lamb, Langan & Blake, Jersey City, attorneys; Arthur J. Blake, Jersey City, of counsel).

Before Judges PRICE, GAULKIN and SULLIVAN.

The opinion of the court was delivered by

PRICE, S.J.A.D.

In a negligence action, tried before a court and jury in the Superior Court, Law Division, plaintiff seeks to reverse a judgment of dismissal entered on defendant's motion at the end of plaintiff's case (R.R. 4:42--2(b). Plaintiff sought the recovery of damages for personal injuries resulting from a fall from a ladder while working for Max Cohen Plumbing Company (hereinafter called Cohen), in the performance of a contract which Cohen had entered into with defendant to install a '(n)ew four-inch galvanized water pipe to be run from the bottom of water tower to the pipe of the (factory) building' on defendant's property. The record reveals that a wooden water tank, 20 feet in depth, was erected on an iron structure 60 feet above the ground. A coemployee of plaintiff testified that a 'feedpipe,' which came 'out of the tank,' was rotted and the contractor 'had to replace it with new pipe,' and that the pipe went 'through the bottom of the tank' and it was necessary to 'go into the tank to unscrew it'; it was 'part of the job' to do so.

During the course of the work Cohen's foreman directed plaintiff to 'see what kind of connection was in the tank.' In compliance therewith plaintiff climbed an iron ladder from the ground to the 'top of the water tower,' removed a 'trap door' cover from an opening on the tank roof, and climbed down a stationary wooden ladder, attached to the inside of the tank wall, leading to the bottom of the tank. Plaintiff testified that the ladder 'appeared all right' but was 'wet' and 'slimy' or 'soggy.' On reaching the bottom of the tank he located 'a flange around the pipe holding the pipe from the outside of the tower to the inside.' With the aid of lighted matches he completed his inspection and then commenced his ascent of the ladder. When he was 'three or four rungs from the top * * * one of the rungs collapsed underneath' his left foot, precipitating him to the tank floor with such force that he was rendered temporarily unconscious and sustained the injuries for which he sought compensation as aforesaid. Plaintiff further testified that, before he was lifted from the tank by a rescue squad, 'I felt a piece of the ladder the part that I felt was rotted like a piece of wood you see on the beach. It was all rotted.' There was testimony from the coemployee that the ladder was 'broken in several pieces' and the wood 'rotted.'

Attempting to support the trial court's action and the reasoning on which it was based, defendant cites Broecker v. Armstrong Cork Co., 128 N.J.L. 3, 24 A.2d 194 (E. & A.1942); Gibilterra v. Rosemawr Homes, 19 N.J. 166, 115 A.2d 553 (1955); Mergel v. Colgate-Palmolive-Peet Co., 41 N.J.Super. 372, 125 A.2d 292 (App.Div.1956); certification denied 22 N.J. 453, 126 A.2d 392 (1956). The asserted justification for the dismissal is unsupported by the factual situation revealed by the testimony presented on plaintiff's case.

The aforesaid cases on which defendant relies in support of the trial court's action are authority for the proposition that, where the...