On appeal from the Supreme Court.
For the plaintiff-appellant, Walter S. Keown.
For the defendant-respondent, Ralph N. Kellam.
The opinion of the court was delivered by
CASE, J. The appeal is from a judgment entered in the Supreme Court following a nonsuit granted by Judge Shay in the Cumberland Circuit of the Supreme Court.
The action was to recover damages for the death of the plaintiff's decedent which came as the result of a fall through a defective roof which the said decedent as an employee of W.H. Tinney Company, a Philadelphia roofing concern, was engaged in replacing. The accident occurred at the plant known as the old Whittall Tatum glass plant at Millville. In the operation of that plant use was made of a blast furnace, and the heat from the furnace through the years dried out the wood of the roof. Consequently the roof had to be replaced.
W.H. Tinney Company undertook the job as an independent contractor, and the decedent was an employee of, and worked under, the direction of that company. There is no proof that Armstrong Cork Company exercised any authority over the contractor or the contractor's employees as to the methods which should be followed or the precautions which should be taken in the performance of the work. In general the method pursued was that the old rood boards and roofing materials were torn off in sections twenty feet in width by forty feet in length. The heavy roof girders, spaced twelve feet apart, were retained. The new roofing consisted of a corrugated asbestos sheeting material laid upon new channel irons which in turn rested upon the girders and were twenty feet in length, eight inches wide and one quarter of an inch thick and weighed about 400 pounds. Each day a section of the old roofing was torn off, the new materials were hoisted through the opening thus made and piled in a convenient spot, and the closing of the opening with the new roofing constituted a day's work. The decedent O'Donnell was on the roof
engaged in that work. The job had progressed for three weeks and was about three-fourths completed when O'Donnell stepped on an unremoved portion of the old material that was not strong enough to bear his weight and fell through, receiving injuries that resulted in death.
The theory upon which the appellant would sustain her case is that O'Donnell was an invitee on the defendant's premises and that thereby the defendant was placed under the duty of furnishing him with a reasonably safe place to work. In support of that theory appellant cites Riley v. Jersey Leather Co., 100 N.J.L. 300; Byram v. Warner-Quinlan Co., 104 Id. 534; Murphy v. Core Joint Concrete Pipe Co., 110 Id. 83; Sommer v. Public Service Corp., 79 Id. 349; Sutton v. Lerner Stores Corp., 10 N.J. Mis. R. 1126; Santamaria v. Lamport & Holt Line, Ltd., 119 N.J.L. 467; Lechman v. Hooper, 52 Id. 253; Severini v. Olim, 15 N.J. Mis. R. 32. None of those decisions sustain the point here advanced.
In Riley v. Jersey Leather Co., Mr. Justice Trenchard said:
"It is, of course, true that ordinarily the contractor and not the contractee is the person liable to an employee of the contractor for injuries received by the employee in the course of his employment. But that rule is subject to certain exceptions. Among others, where, as here, the contractee actively interferes with, and participates in, the work contracted for, and the real cause of the injury to the plaintiff, an employee of the contractor, is the independent negligence of both the contractee and the contractor, the contractee, as well as the contractor, is liable."
We direct attention to the general rule, as there stated, which applies to the instant case, and to the exception which took that case out of ...