On appeal from the Superior Court, Appellate Division.
No. A-107: For reversal -- Chief Justice Vanderbilt, and Justices Heher, Wachenfeld, Burling, Jacobs and Brennan. For affirmance -- Justice Oliphant. No. A-108: For affirmance -- Chief Justice Vanderbilt, and Justices Oliphant, Wachenfeld, Burling, Jacobs and Brennan. For reversal -- Justice Heher. The opinion of the court was delivered by Wachenfeld, J.
The plaintiff brought suit against the Pennsylvania Railroad Company, John Gerba, Jr., and Seaboard Coal Dock Company, alleging he was severely injured by reason of their negligence on September 13, 1950 when he was struck by a coal dump railroad car in the railroad company yard in South Amboy under circumstances described later.
The jury returned a verdict of $60,000 in favor of the plaintiff against the Pennsylvania Railroad Company, hereinafter referred to as Pennsylvania, but exonerated Seaboard Coal Dock Company, hereinafter referred to as Seaboard, and John Gerba, Jr.
After the denial of motions for a new trial by the plaintiff, directed toward Seaboard and Gerba, by the Pennsylvania, cross-appeals were filed. The Appellate Division reversed as
to the railroad company and affirmed as to Seaboard and Gerba, thereby nullifying the plaintiff's recovery.
Petitions for certification in both the Pennsylvania and Seaboard cases were granted, bringing the issues here for disposition. The cause against the defendant Gerba was abandoned.
The coal dock, together with the land, railroad tracks, dumper, kick-back system, all appurtenances, equipment and machinery at South Amboy, was owned by the Pennsylvania. This property suffered considerable damage as a result of a terrific explosion on May 19, 1950.
Shortly thereafter the restoration of the plant was undertaken. Many men were engaged in this endeavor, and the electrical repairs throughout the entire extensive area, including work on the two dumpers, were performed by Coleman Electric Company under contract with the Pennsylvania. In addition to the eight or nine Coleman employees, of whom the plaintiff was one, there were carpenters, laborers and other craftsmen working "all over the place," "crossing the tracks," in an effort to put "those dumpers and that operation back in place."
The operation referred to, by which coal is transferred from railroad cars into barges, is described with exceptional clarity in the opinion of the Appellate Division, Gudnestad v. Seaboard Coal Dock Co., 27 N.J. Super. 227 (App. Div. 1953), and reference is directed to the graphic explanation therein for an understanding of the system.
It reveals that Seaboard is an independent contractor hired by the Pennsylvania to conduct the unloading operation. It assumes charge of the loaded coal car at the foot of a trestlelike structure called a dumper and operates the necessary machinery to draw the car up an incline to a platform where the coal is emptied out. At this point a brakeman in the employ of the Pennsylvania takes his position in the rear of the car. After the next car shoves it off the platform, the unloaded car proceeds by gravity along a length of track on the ground to another incline of kick-back, ascends that structure, and then, when its momentum is expended, gravity
reverses its direction. As it descends the kick-back, a switch automatically operates to direct the empty car onto a track traversing the dumper and running out into another section of the yard.
While traveling along the portion of track between the kick-back and the yards, an empty coal car with the defendant Gerba attending the brake struck the plaintiff, severing his leg and inflicting other personal injuries.
The theory of liability sought to be enforced against the Pennsylvania is grounded in invitation, it being urged that the railroad was derelict in its duty of keeping its premises safe for the plaintiff, allegedly an invitee at the point where the mishap occurred.
As to Seaboard, it is generally alleged this independent contractor was remiss in its obligation to exercise due care with respect to the plaintiff, who was lawfully on the premises owned by the Pennsylvania.
AS TO THE PENNSYLVANIA RAILROAD COMPANY
The trial court determined that the plaintiff, "being an employee of a contractor doing work for the Pennsylvania Railroad Company, became an invitee on the premises in so far as the Pennsylvania Railroad is concerned," and therefore the railroad company "owed the plaintiff a duty of exercising reasonable care commensurate with this invitation." Whether or not the defendant fulfilled its obligation in this respect was left to the jury for its determination.
However, the Appellate Division concluded there was no competent proof warranting "an inference that the railroad company impliedly invited the employees of the contractors engaged in the making of the repairs to cross the tracks at that place and proceed beneath the trestle as a means of entrance and egress to or from their places of actual employment on the property." It therefore voided the judgment entered upon the jury's verdict.
The reasoning employed at the trial level was premised upon an implied invitation emanating from the contractual
relationship between Coleman and the Pennsylvania which created the duty in the defendant to render the premises reasonably safe for the purpose of the plaintiff's engagement. Sommer v. Public Service Corp., 79 N.J.L. 349 (Sup. Ct. 1910).
But the Appellate Division decided this defendant was then absolved from that duty because the liability created by it was only co-extensive with the invitation extended, which was exceeded, relying upon ...