On appeal from the Supreme Court.
For the respondent, Parsons, Labrecque & Borden (Theodore D. Parsons, of counsel).
For the appellant, Lester C. Leonard.
The opinion of the court was delivered by
RAFFERTY, J. This is a common law action by servant against master, to recover damages for an injury sustained in the course of the employment, and arising out of that employment. There was no contract or notice removing the relationship from the operation of the Workmen's Compensation act (R.S. 34:15-9), and hence the case would be controlled by that act unless the employment was casual. R.S. 34:15-36. Plaintiff claimed that it was casual; and this question, and the further question whether the injury was caused in whole or part by some negligent act or omission of the alleged casual employer, are the two critical features of the cause.
Defendant Ainsworth was the proprietor of a coal yard equipped with a railroad trestle and bins underneath it. An addition to the trestle, called a catwalk, was projected or under construction, and plaintiff was engaged by Ainsworth to work on the catwalk. At the time of that engagement he was working elsewhere, and as he claimed, for a different employer, as will appear more fully in a moment. At the request of Ainsworth, according to his story, he left the other employment temporarily, went to the Ainsworth's coal yard, and was occupied in making measurements on the ground under the trestle, when two employes of Ainsworth opened the bottom of a coal car standing on the trestle, and the contents, consisting of coke, poured down on plaintiff and injured him.
The principal defenses were two in number: first, that the case was within the Compensation act; and secondly, if not within that act, the injury was the act of fellow servants, and that the negligence of those fellow servants was a risk assumed by the plaintiff. Butler v. Eberstadt, 113 N.J.L. 569, 577, and cases there cited.
As to the first question, defendant claimed that plaintiff was his regular employe; that plaintiff had been working for him on the previous job already mentioned, and had merely been transferred from one job to another, but was on both jobs an employe of Ainsworth. As to this, plaintiff's case was that the first job was construction work at the Laird plant at a place called Scobeyville, and that his employer was the Laird concern; that Ainsworth was indeed superintendent of construction for the Laird concern, and, as such, had supervision and control of plaintiff, but that plaintiff was paid by the Laird office and was not then an employe of Ainsworth.
As to the second question, relating to the fellow servant rule, plaintiff's case rested on the duty of the employer at common law in relation to providing a safe place to work.
Motion for direction of verdict made at the close of the case was denied.
The court in its charge left to the jury the factual question as to whether or not Clayton was a casual employe and, if the jury found such a status, whether defendant had met his primary duty in providing to plaintiff a reasonably safe place in which to perform his work and in warning or causing plaintiff to be warned of any latent or unforeseen danger which would imperil him in the place provided for the work to be done. The jury were also instructed that if they found plaintiff knew or reasonably should have known of the existence of the danger, he could not recover, notwithstanding the negligence of defendant, because plaintiff would then have assumed the risk of the employment.
The grounds of appeal as argued are summed up in two points, the first being that the court erred in denying defendant's motion for a directed verdict and, the second, that the court erred in charging that it was the duty of defendant to give warning to plaintiff before the car was unloaded, and that the jury should decide whether defendant had failed in his duty to provide plaintiff with a reasonably safe place in which to work.
Appellant argues generally that the court fell into these alleged errors because of its failure to give effect to the "fellow-servant rule," and cites a number of cases involving the application of that rule. This argument quite overlooks the primary and non-delegable duty of the master to provide a safe place of employment for his servant and to provide him with proper tools and equipment, if such be necessary, and to warn the servant of any latent or unusual dangers that might attend the employment.
The theory of the case below, as presented and tried by plaintiff, was that the injury was occasioned to plaintiff because of the negligence of defendant in failing to properly protect and guard the structure and in failing to maintain a proper method of protection and warning to ...