On appeal from the Supreme Court.
For the appellant, Kellogg & Chance.
For the respondent, Maurice J. McKeown and Coult, Satz & Tomlinson (De Voe Tomlinson, of counsel).
The opinion of the court was delivered by
TRENCHARD, J. The plaintiff brought this action under the Death act (Comp. Stat., p. 1907) to recover damages for the pecuniary loss sustained by herself and her children as the next of kin of her deceased husband, Raymond Murphy. She obtained a verdict at the Union Circuit, and the defendant appealed from the consequent judgment.
It was open to the jury to find from the evidence, if they saw fit, the following matters of fact:
The Core Joint Concrete Pipe Company, the defendant, occupied premises whereon it manufactured concrete pipe. The decedent was employed by F. Depretz & Son as a truck driver. This firm had a contract or arrangement with the defendant to cart pipe from the premises of the defendant to such destinations as should be designated by the latter. The defendant maintains on its premises certain pits. These pits were excavated to such a depth that normally the platforms of the trucks on to which the pipes were loaded were on a level with the ground surrounding the tops of the pits. On the day of the accident, the decedent drove one of his employer's trucks to the defendant's premises to get a load of pipes which he was then to take to New Brunswick. This particular load consisted of four sections of pipe. Each section was forty-eight inches in diameter, four feet in length and weighed three thousand six hundred pounds. The decedent, in accordance with the usual custom, backed his truck into one of the pits for the purpose of having the sections of pipe loaded thereon. This pit was four and one-half feet in depth, twelve feet in width and twenty-six feet in length. The pipes were to be rolled on to the rear end of the truck and then placed in proper position. It was the duty of the defendant's employes to load the pipes on the truck, and the decedent had no part therein, except to "chock" the pipes to steady them after they had been loaded. The rain had washed down the rear end of the pit considerably with the result that the bank at the rear end sloped. The consequence was that the rear platform of the truck could not completely reach that portion of the ground from which the pipes were to be rolled on to the
truck, there being a space of a foot and a half between the truck and the level ground. Because of that existing gap the defendant's employes took some old discarded planks which had been lying on the surrounding field and extended them from the level ground to the truck to cover this gap. They then rolled on to the truck three sections of pipe; two of these sections were placed in the front of the truck and one on the rear on the right side. The defendant's employes then started to roll on to the truck the last section, which was to be placed on the left side of the truck at the rear. While so engaged one of the planks broke, with the result that the pipe skidded over to one side at an angle, with one end of the pipe resting on the side of the bank and a portion of the side of the pipe resting on or against the truck. Thereupon defendant's superintendent caused the employes of the defendant to insert another plank under the pipe for the purpose of bracing it and then directed the decedent to pull his truck ahead so as to clear the pipe and the supporting plank. Decedent thereupon pulled his truck forward and then went to the rear of his truck in the pit to see if the truck was clear. As decedent pulled his truck out the defendant's employes endeavored to push the pipe up the side of the pit. The supporting plank, however, then broke with the result that one end of the pipe went down in the pit and struck decedent, who was standing by the rear end of the truck, and injured him so severely that he died one month later.
We shall hereafter refer to other incidental evidence as occasion requires.
The defendant-appellant first contends that the trial court erred in refusing to nonsuit and to direct a verdict for the defendant.
The argument is that these motions should have been granted (1) because at the time of the accident, the decedent was a mere licensee upon the premises of the defendant; and (2) because he was guilty of contributory negligence.
We think that the judge properly left to the jury the question of whether the decedent at the time of his injuries was an ...