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Gibilterra v. Rosemawr Homes Inc.

Decided: October 4, 1954.


Clapp, Jayne and Francis. The opinion of the court was delivered by Clapp, S.j.a.d.


This was an action for negligence which was dismissed at the close of plaintiff's case, on the ground that he had not made out a cause of action as against any of the three defendants. He appeals.

The defendant, Rosemawr Homes, Inc., was engaged in developing certain of its property. It hired or rented from

the defendant, United Construction Co., Inc., a steam shovel to dig, among other things, a trench from a house to the street so as to enable Patsy Vellone, a plumbing contractor, to connect the house plumbing with the sewer line in the street. Plaintiff was Vellone's helper. The defendant, Francis L. Bayley, United's employee, the "steam shovel man on the project," dug the trench, in some measure at any event pursuant to Vellone's instructions, making it four feet wide and, for some of its distance, 12 feet deep. While plaintiff was at work in the trench, one side caved in, injuring him seriously.

We think the dismissal should stand as against Rosemawr. The plaintiff, citing Restatement of Torts , §§ 413 and 416, seeks to hold Rosemawr upon the theory that the ditch was inherently dangerous to the plaintiff unless special precautions were taken in digging it, and that therefore Rosemawr, as the employer of the independent contractor, United, is liable for United's alleged failure to take such precautions.

This theory has not met with approval everywhere. Silveus v. Grossman , 307 Pa. 272, 161 A. 362 (Sup. Ct. 1932). Our cases use the term "nuisance." Terranella v. Union Bldg. and Construction Co. , 3 N.J. 443, 446 (1950); Sarno v. Gulf Refining Co. , 99 N.J.L. 340, 342 (Sup. Ct. 1924), affirmed 102 N.J.L. 223 (E. & A. 1925); Cuff v. Newark and New York R.R. Co. , 35 N.J.L. 17 (Sup. Ct. 1870), affirmed 35 N.J.L. 574 (E. & A. 1871).

But we need not in this case look further into the matter; for, as stated in the Restatement at the places cited, the rule applies only to a situation "necessarily" giving rise to an "unreasonable" or a "peculiar" risk of bodily harm. See Prosser, Torts 488 (1941); Mechem, Outlines of Agency (4 th ed. 1952), § 488; 57 C.J.S., Master and Servant , § 590, p. 361; Besner v. Central Trust Co. , 230 N.Y. 357, 130 N.E. 577, 23 A.L.R. 1084; Smith v. Henger , 148 Tex. 456, 226 S.W. 2 d 425, 20 A.L.R. 2 d 868; Note, Responsibility for the Torts of an Independent Contractor , 39 Yale L.J. 861 (1930). As to the phrase "inherent danger," cf. Lydecker v. Freeholders of Passaic , 91 N.J.L. 622, 627

(E. & A. 1918); O'Donnell v. Asplundh Tree Expert Co. , 13 N.J. 319, 329 et seq. (1953). It cannot be supposed from the proofs (even taking into account testimony that might have been given by Morris Mandl, as hereinafter stated) that the mere making of an excavation with a steam shovel would necessarily give rise to an unreasonable or peculiar risk to the plaintiff.

Generally the person who engages an independent contractor is not to be charged with the negligence of the latter's employee. Meny v. Carlson , 6 N.J. 82 (1950). The case against Rosemawr is within the general rule and was properly dismissed.

As to the liability of the defendants, Bayley and United, the situation is different. First, United claims it was, as a matter of law, relieved of responsibility for Bayley's acts when it "rented or hired" him and the shovel to Rosemawr. With this, we do not agree. United paid Bayley his wages. Besides it could reasonably be inferred that United expected him to look after its interests in operating the shovel and, failing that, could prohibit him from operating it. The question as to whether the relationship between United and Bayley was that of master and servant was for the jury. Larocca v. American Chain and Cable Co. , 13 N.J. 1, 6 (1953); Younkers v. Ocean County , 130 N.J.L. 607 (E. & A. 1943); cf. Mersey Docks and Harbour Board v. Coggins and Griffith (Liverpool), Ltd. [1947] A.C. 1 (H.L.).

Next, United, as an independent contractor, claims these injuries occurred after its work had been completed and accepted by the owner or employer, and therefore it and its employee are absolved from liability. Miller v. Davis & Averill, Inc. , 137 N.J.L. 671 (E. & A. 1948); but cf. Restatement of Torts , § 385; Prosser, Torts , 694-697 (1941). See further Hale v. Depaoli , 33 Cal. 2 d 228, 201 P. 2 d 1, 13 A.L.R. 2 d 191, 239; and in support thereof, Prosser, supra , 695. The theory of this rule is ...

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