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Miller v. Davis and Averill Inc.

Decided: September 3, 1948.

WALTER MILLER, PLAINTIFF-APPELLANT,
v.
DAVIS AND AVERILL, INC., A CORPORATION OF THE STATE OF NEW JERSEY, DEFENDANT-RESPONDENT; CLEVELAND TRAMRAIL ELECTRIC CO., OF NEWARK, CLEVELAND TRAMRAIL NEWARK COMPANY AND CLEVELAND CRANE AND ENGINEERING COMPANY, DEFENDANTS



On appeal from the Supreme Court.

For the plaintiff-appellant, James A. McTague.

For the defendant-respondent, Townsend & Doyle.

Burling

The opinion of the court was delivered by

BURLING, J. This is an action at law sounding in tort based upon the alleged actionable negligence of the defendant Davis and Averill, Inc., a corporation of the State of New Jersey. The sole ground of appeal is that the trial court directed a judgment of nonsuit against the plaintiff and in favor of the defendant, whereas the court should have denied said motion and should have submitted to the jury for decision the questions in the issue. There were two additional parties to the action -- Cleveland Tramrail Electric Co. of Newark and Cleveland Tramrail Newark Company. After the opening of the case by the attorneys to the jury, a colloquy occurred between them and the court. As a result thereof, the plaintiff agreed that the only remaining defendant in the movement of the causes of action was the respondent,

Davis and Averill, Inc. At the close of the plaintiff's case a nonsuit was granted as to said defendants (postea, S.C., page 13). No appearance is made by the defendant Cleveland Crane and Engineering Company and no explanation appears in the record as to the disposition of the cause of action against it. Although the ground of appeal is addressed to the action of the court to all defendants, the briefs are addressed only to the action as to the respondent Davis and Averill, Inc., a corporation of the State of New Jersey and the disposition of the appeal will be in accordance therewith.

It is settled law that on a motion for a nonsuit the defendant admits the truth of the plaintiff's evidence and of every favorable inference to be deduced therefrom but denies their sufficiency in law. Applying this principle to the case at hand, the following facts appear: Plaintiff had been employed by the Coca Cola Company at its warehouse at Kearny, New Jersey. Whether the Coca Cola Company was the owner or lessee of the premises in question does not appear from the evidence, as the Coca Cola Company is not a party to the suit. However, this is immaterial as it appears from the pleadings and proof that Coca Cola Company either as owner or lessee had the control of the premises in question. Plaintiff's employment was that of crane operator and had been for five years preceding the event. The crane operated by the plaintiff was on a track that was fixed to the ceiling of the warehouse. This crane consisted of three units, a forward motor, a lift and cab, and a rear motor. The purpose of this mechanism was to enable the crane to travel around the warehouse, picking up and discharging sugar bags.

The equipment had been installed by the defendant seven or eight years preceding the event. It was manufactured by the Cleveland Crane and Engineering Company. On March 24th, 1943, defendant contracted with the Coca Cola Company to repair a hanger which supported the rail and did in fact make such repair. On April 24th, 1945, while the crane was being operated by the plaintiff, the hanger broke and the track gave way at the hanger in question and plaintiff and the cab were dropped to the floor and the plaintiff was injured.

The stipulation made in court before the commencement of the reception of evidence set forth that the obligation of defendant was to do a reasonably safe workmanlike job under the contract for repairing. When the work was accepted by the Coca Cola Company, the contract of repair called for no further service or action by the defendant. Thereafter employees of said Coca Cola Company made weekly inspections of fitness for use for over two years before the event in question.

The gravamen of the complaint is that the defendant undertook to repair the hanger and did so in a careless and negligent manner in that the defendant made an improper welding and the hanger broke as a result thereof.

The trial court directed the entry of a judgment of nonsuit upon the ground that defendant was an independent contractor and not responsible to a third party for injuries resulting from the negligent performance of the work undertaken and further that the work had been completed and turned over to the owner ...


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