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O''Donnell v. Asplundh Tree Expert Co.

Decided: March 27, 1953.

RICHARD O'DONNELL, PLAINTIFF-APPELLANT,
v.
ASPLUNDH TREE EXPERT CO., A/K/A THE ASPLUNDH CO., A CORPORATION, DEFENDANT-RESPONDENT



Eastwood, Bigelow and Jayne. The opinion of the court was delivered by Jayne, J.A.D. Bigelow, J.A.D. (dissenting).

Jayne

[25 NJSuper Page 336] The mishap which has occasioned the present litigation occurred at Chelsea Place in East Orange on March 30, 1950. The plaintiff was engaged in the pursuit of his employment by the East Orange Shade Tree Commission and had ascended a swamp oak tree to perform some pruning of its limbs and branches. He was wearing a safety saddle and belt, to which was attached a clip, hook, or snap through the collar of which passed a manila rope half inch in diameter and about 120 feet in length. The rope was crotched in the tree at a point about 20 feet above him. He endeavored in accordance with the practice of such an occupation to swing to another part of the tree and while in suspension

the clip, sometimes called the snap or hook, suddenly fractured and he dropped to the ground.

He sought the recovery of compensatory damages for the injurious consequences of the mishap from Meeker Foundry Company which made the castings, the Covert Manufacturing Company which provided the requisite rivet and attached the clip and spring, and the Asplundh Tree Expert Company which supplied the clip to the Shade Tree Commission.

At the conclusion of the introduction by the plaintiff of the evidence relating to the issue of liability, judgments of involuntary dismissal were granted in favor of all of the defendants. Only the judgment of dismissal in favor of the Asplundh Company is the subject of the present appeal. Hereinafter the Asplundh Company will be designated as the defendant.

We necessarily approach the consideration of the propriety of the judgment under review with the consciousness that the court must accept as true all evidence which supports the view of the party against whom the motion is made and must give him the benefit of all inferences which may logically and legitimately be drawn therefrom in his favor. Gentile v. Pub. Service Coordinated Transport , 12 N.J. Super. 45 (App. Div. 1951).

In this case there was a prima facie background of certain basically essential facts. The defendant had previously sold to the East Orange Shade Tree Commission, among others, the clip which failed. It could have been logically and legitimately inferred that the defendant had reason to contemplate that the clip would be attached to some safety appliance which the Commission would supply for the use of its tree trimmers. The part of the clip that broke was a malleable iron casting which fractured at a brittle location where "the malleable-izing treatment had not been carried out perfectly and with complete success and that constituted a latent defect in the material of which the hook (clip) was made." The weakness would not be discernible "without breaking down and microscopic examination" or by subjecting the part to a "hardness test." Moreover "a malleable casting

is not the best material for this type of use * * * the forging would be much more effective."

The plaintiff's amended complaint is examined definitely to ascertain the character of his alleged cause of action against this defendant. It is therein alleged that "the aforesaid safety clip or snap broke causing plaintiff to fall to the ground, as a result of the negligence of the defendant Asplundh Tree Expert Co. in negligently assembling, testing and inspecting the aforesaid safety clip or snap and further negligently represented that this safety hook or snap was adequate to be used as a safety hook or snap for use by tree trimmers." The pretrial order states: "This suit is as pleadings indicate predicated solely on negl and no question of warranty, express or implied. Issues negl, contr. negl and assumption of risk. The above statement is not supposed to supplant the issues in the pleadings."

There is no evidence discoverable in the transcript warranting a reasonable inference that the component parts of the clip were in fact carelessly assembled, much less that this defendant was in any wise implicated in that function.

We then examine the transcript in search of the presence of some evidence that this defendant was negligent in "testing and inspecting" the clip, from which dereliction the mishap proximately resulted.

Initially we must realize that this defendant was not the manufacturer of the clip, nor is it evident that the defendant introduced it to the market as its own product under its own name or label. Cf. Heckel v. Ford Motor Co. , 101 N.J.L. 385 (E. & A. 1925), with Martin v. Studebaker Corp. , 102 N.J.L. 612 (E. & A. 1926), and Slavin v. Francis ...


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