Eastwood, Bigelow and Jayne. The opinion of the court was delivered by Jayne, J.A.D.
Among its many transportational operations the Pennsylvania Railroad Company assembles in its yard at South Amboy, New Jersey, freight cars containing consignments of coal from the mines. At the estuary there is a dock at which the coal is transferred from the railroad cars into barges for delivery to designated ports. To facilitate the displacement of the coal from the cars into the hulls of the barges the railroad company maintains at the edge of the dock two separate units, each composed of consolidated trestles called "dumpers" over which the coal cars are moved in frequent succession to the required elevation. Although the sloping runways are straight, not spiral, the structures resemble in appearance the so-called scenic railways, or shoot-the-chutes, frequently observable at amusement parks.
In the use of each unit the practice is to "spot" the coal car on the track at the foot of the trestle, draw it by means of a "pig" up to the "tipple" or platform at the top, where the car is emptied. The empty car is there entrusted to the control of a brakeman of the railroad company. The car is "nudged" forward off the platform by the next car and by its gravitational impetus it travels along the downward slope of the trestle to the ground level and continues up the incline of another trestle known as the "kick back" until its momentum is either expended or is arrested by the manual operation of the brakes by the brakeman. Then it is permitted by the reverse gravitational impulsion to travel in the opposite direction back down the last-mentioned trestle to the ground level again, where a switch operates to deflect
the car onto a track leading to a section of the yard reserved for the accommodation of empty cars.
This performance in its entirety is not conducted solely by the Pennsylvania Railroad Company. The Seaboard Coal Dock Company in the capacity of an independent contractor takes charge of the loaded car at the foot of the trestle, operates the "pig" to draw it up to the "tipple" or platform, empties the coal from the car, and initiates the passage of the empty car down the declivitous section of the trestle. When thus started, the rider or brakeman, an employee of the Pennsylvania Railroad, assumes control of the further movements of the car.
Both units of this unloading equipment suffered damage in the catastrophic munitions explosion in South Amboy on May 19, 1950, and the repair and restoration of the premises were still in progress in July 1950 when the plaintiff, an employee of Walter J. Coleman, Inc., engaged in electrical construction, came there to perform the services of an electrician and continued to be employed there until the occurrence of his misfortune on September 13, 1950.
The weather was stormy on the day last mentioned. The plaintiff had completed his daily work and had deposited his tools in a small temporary shed then located near the line of railroad tracks which extend from the "kick back" trestle to the yard provided for empty cars. While undertaking to walk across this line of railroad tracks, he was struck by an empty freight car which, accompanied by a brakeman, was proceeding toward the yard. He sustained an injury which necessitated the amputation of his lower left leg.
Litigation was inaugurated by the plaintiff to establish the liability of the Seaboard Coal Dock Company, the Pennsylvania Railroad Company, and the brakeman, John Gerba, Jr., for the occurrence of the mishap and its injurious consequences. A trial ensued at which the jury exonerated the Dock Company and Gerba from liability and determined that the Pennsylvania Railroad Company was legally responsible for the plaintiff's injuries and his present and prospective losses, for which the jury awarded him $60,000 damages.
A conformable judgment was entered, from which we have two appeals. The railroad company appeals from the judgment in relation to its liability, and the plaintiff appeals from that part of the judgment that absolved Gerba and the Dock Company from culpability.
In the consideration of these appeals it is judicious first to recognize the basic uncontroverted facts. The premises upon which the plaintiff sustained his injury, including the railroad tracks, the structures and the operative appliances thereon, were all owned solely by the railroad company. The Dock Company was an independent contractor engaged by the railroad company to perform the specific service to which reference has been made. The plaintiff was on the premises as an employee of the Coleman company only in pursuance of a contract between his employer and the railroad company. The mishap was not directly related to the employment of the Dock Company in raising the loaded car to the tipple and there unloading it. The brakeman who thereafter governed the movements of the empty car was the servant of the railroad company. The point on the railroad tracks at which the car collided with the plaintiff was not ostensibly designed or constructed by the railroad company as a crossing passageway for either vehicular or pedestrian traffic.
It is likewise expeditious initially to examine the plaintiff's alleged cause of action against the Dock Company. The first count of the amended complaint invokes the doctrine of respondeat superior , alleging that the car was negligently operated by the brakeman, Gerba, as an agent and servant of the Dock Company. The proof positively refuted the alleged existence of the relationship and the court accordingly dismissed that count of the complaint in its application to the responsibility of the Dock Company for the alleged negligence of the brakeman. We perceive no error in that judicial action. The second count alleges that the Dock Company "was in control of the operation of the coal docks on the premises" and "carelessly and negligently failed to take proper precautions for the safety of invitees on its
property by not having watchmen, signal devices or sound devices at proper places on ...