On appeal from Superior Court, Appellate Division, whose opinion is reported in 23 N.J. Super. 195.
For affirmance -- Chief Justice Vanderbilt, and Justices Heher, Oliphant, Wachenfeld, Burling, Jacobs and Brennan. For reversal -- None. The opinion of the court was delivered by Burling, J.
This is a civil action, sounding in tort. The present appeal stems from a judgment in favor of the defendant Richard A. Ench, trading as Rae Construction Co. (hereinafter called Ench), entered in the Superior Court, Law Division. The judgment effected involuntary dismissal of the claim of the plaintiff Carmin Larocca against Ench. Upon appeal the Superior Court, Appellate Division, reversed this judgment and ordered a new trial. 23 N.J. Super. 195. Certification was allowed on Ench's petition therefor. 11 N.J. 496 (1953).
The plaintiff Carmin Larocca was employed by Timber Structures, Inc., a manufacturer of roof trusses. Timber Structures, Inc., had contracted to place roof trusses in a building in Paterson, and in the course of the performance of its contractual obligations it entered into an agreement with Ench, who was in the construction business, whereby a crane was rented from Ench for the purpose of raising the roof trusses into position.
During the course of the task of raising a truss, Carmin Larocca suffered injuries. He instituted suit against Ench (owner of the crane), Charles DeWitt (employee of Ench and operator of the crane at the time Larocca was injured), and American Chain & Cable Company, Inc. (a manufacturer of steel cable). Helen Larocca, wife of Carmin, joined in the complaint, alleging loss of consortium. Before trial the plaintiffs' action was dismissed with respect to their claims against American Chain & Cable Company, Inc. At the trial the remaining defendants moved for judgment of involuntary dismissal of plaintiff Helen Larocca's claims.
This motion was granted and judgment was entered against Helen Larocca.
The trial proceeded on the claims of Carmin Larocca against Ench and DeWitt. At the close of the entire reception of evidence, the plaintiff moved for judgment of voluntary dismissal as to the defendant DeWitt. The motion was granted and judgment entered thereon. It is noted however that the trial court had denied defendant DeWitt's motion for judgment (also made at the close of defendant's case) and held that there was sufficient evidence to go to the jury on the question of DeWitt's negligence. Ench had moved for judgment of dismissal of Carmin Larocca's suit at the close of the plaintiff's case. The trial court had granted Ench's motion on the premise that as a matter of law the relationship of master and servant did not exist between the crane operator, DeWitt, and Ench at the time the injury occurred.
Plaintiffs Carmin and Helen Larocca both appealed to the Superior Court, Appellate Division, from the judgment of the Law Division, "except so much thereof as grants judgment in favor of the defendant Charles DeWitt against the plaintiff Carmin Larocca." The appeal resulted in affirmance of the judgment of the Law Division as to plaintiff Helen Larocca and as to the plaintiff Carmin Larocca except with respect to the dismissal of his claim against Ench. That portion, the judgment of dismissal in favor of the defendant Ench in the action of Carmin Larocca, was reversed and a new trial therein was granted.
No appeal or petition for certification appears to have been filed by Helen Larocca seeking review of so much of the judgment of the Superior Court, Appellate Division, as was adverse to her. Consequently we have no occasion to consider the determination of the Appellate Division in that connection.
The defendant Ench petitioned for certification to review the judgment of the Appellate Division insofar as it ran in favor of the plaintiff Carmin Larocca. As hereinbefore stated, Ench's petition was granted and certification as sought therein was allowed. 11 N.J. 496 (1953).
The questions involved on this appeal are: (a) whether there was sufficient evidence introduced to permit a jury to find that DeWitt was negligent in the performance of his duties in connection with the operation of the crane, and if so, (b) whether the trial court erroneously determined as a matter of law that temporarily (i.e., at the time of Carmin Larocca's injury) the ...