On appeal from the Law Division of the Superior Court; certified by the Supreme Court on its own motion while pending in the Appellate Division of the Superior Court.
For reversal -- Chief Justice Vanderbilt, and Justices Heher, Oliphant, Wachenfeld, Burling, Jacobs and Brennan. For affirmance -- None. The opinion of the court was delivered by Vanderbilt, C.J.
The plaintiff was employed as a foreman by Linde-Griffith Company, contractors engaged by the Public Service Electric and Gas Company to build a meter house on their right-of-way through the property of the defendant Koppers Company, Inc. on the west bank of the Hackensack River in Kearny, New Jersey. The meter house was to be used for measuring gas sold by the defendant to the Public Service. Linde-Griffith had also contracted with Public Service to drive three piles on the property of Koppers at a spot approximately 30 feet from the meter house, for the cost of which it was to be reimbursed by Koppers.
The plaintiff's job as foreman was to supervise certain work on the foundation of the meter house and also, although there was some dispute on this, to see that the three piles were properly cut. He and his men had started on the job on November 17, 1950, but due to the hurricane of November 25 and also the high tide in the river it was often necessary to pump out the water from the location of the meter house and even at times to suspend all work there. Upon entering the defendant's property each employee of Linde-Griffith, including the plaintiff, was given a pass that had to be surrendered on leaving the premises. The pass did not restrict the holder thereof to any particular part of the defendant's premises.
Approximately 100 feet south of the site of the meter house and even closer to where the piles had been driven the defendant maintained a screening house, the dressing room and toilet facilities of which were used freely by the plaintiff and other employees of Linde-Griffith. The plaintiff also used the telephone in the defendant's screening house in ordering cement for the meter house job. The defendant maintained a covered trench running about 82 feet in an east and west direction alongside the screening house. The top
of the trench was covered with concrete except at a bend where there were wooden planks. The inside dimensions of the trench were about six feet in width and four feet in depth. It contained a 24-inch gas line as well as a six-inch line of steam which had a temperature of some 400 degrees. It was common knowledge among the defendant's employees that occasionally at high tide water collecting in the trench would upon coming in contact with the steam line cause steam to arise from the trench. The plaintiff testified that in going to the screening house he would normally pass over the trench at a distance of some 45 or 50 feet from the bend in the trench. He had never crossed at the bend nor had he ever been any closer to it than 45 or 50 feet.
On December 8, 1950 the plaintiff reported for work at 7:35 A.M. It was rainy and foggy. After receiving his pass at the gate he drove on the premises, parking his car near a shanty used by Linde-Griffith for the storage of its equipment. He walked to the site of the meter house and found the area was flooded under about eight feet of water. He went to the screening house to get warm and there engaged in conversation with one of the defendant's employees named Ford who was screening coal. In order to ascertain whether further work was possible that day, the plaintiff decided to walk to the river to see how the tide was running. Accompanied by Ford he proceeded toward the river along the top of the trench. Ford testified, though plaintiff denies it, that he had warned the plaintiff not to go near the dock. When they came to the bend in the trench the plaintiff suddenly fell into an open hole in the trench containing boiling water caused by the contact of the tidal waters with the steam line. There was testimony that the hole had been open for several days. Ford claimed that there had been a plank barrier on two wood horses across the trench in front of the hole, which the plaintiff pushed aside just before falling. This the plaintiff denied.
As a result of the fall plaintiff sustained very serious and painful injuries. The jury returned a verdict in his favor for $7,500. He moved for a new trial as to damages only
because of the inadequacy of the verdict. The defendant made a motion for a new trial on all issues, contending that the verdict was contrary to the weight of the evidence and was the result of bias, prejudice, passion, or mistake. The trial judge granted a new trial as to damages only and the defendant appealed from the judgment as well as from the order granting a new trial as to damages only. While the appeal was pending before the Appellate Division of the Superior Court we certified the case on our own motion.
Before going into the merits of the appeal there is a preliminary question of procedure to be determined. The plaintiff insists that no appeal will lie under Rule 4:2-1 from the order granting a new trial as to damages only. It is true that the order for a new trial is not a final judgment, but there remains in full force and effect an adjudication of liability, because the judgment has been set aside solely on the issue of damages. That judgment is here under review. To save time and expense sound judicial practice requires us at this time to consider the appeal from the order directing a limited new trial as well as the appeal from the judgment. Otherwise there will have to be another extended and expensive trial before the vital question raised by the order below could be reviewed. In disposing of procedural matters we should strive to do complete justice and not give partial relief, which may necessitate further appeals without benefit to either party. Although in no way deciding that an appeal can always be taken from such an order, clearly justice here requires such a course.
In its appeal the defendant raises three points, the first two of which are based upon its contention that as a matter of law the plaintiff was not entitled to recover. First, it argues that as a matter of law the plaintiff was not an invitee on that part of the premises where the fall occurred, but was rather a trespasser or at best a licensee to whom the defendant owed only a duty to abstain from wilful acts. Secondly, the defendant contends that the plaintiff was contributorily ...