Eastwood, Goldmann and Schettino. The opinion of the court was delivered by Eastwood, S.j.a.d.
The plaintiff, an employee of the Kingston Bituminous Products Company (hereinafter referred to as "Kingston"), instituted an action against Arthur Vaccaro, doing business as Vaccaro Trucking Company (hereinafter referred to as "Vaccaro"), for the recovery of damages resulting from injuries sustained on June 18, 1951, on a road building project at Fort Dix, New Jersey. Vaccaro had leased to Kingston a dump truck with a stone spreader attached for use on the road building job. Vaccaro also supplied the truck driver and, under the agreement with Kingston, was paid an hourly rate for the use of all three, Vaccaro in turn paying his driver.
Vaccaro filed a third-party complaint against Louis Austin, charging him with indemnity for any recovery made by plaintiff, in that Austin had furnished him with the stone spreader knowing its intended use.
On June 18, 1951 Vaccaro's driver reported for work and was escorted to the job site by plaintiff and directed to the place where he was to load his truck and, after loading it, returned to the point of construction.
The stone spreader attached to the rear of the truck was used to spread small stone or gravel in the course of road construction. The attachment is bolted to the rear of the truck in place of the tail gate and stone is fed into it by raising the body of the truck. The stone is spread over the road by releasing a lever which opens a gate at the bottom of the spreader and the lever is operated by a person from a seat attached to the upper left-hand quadrant of the spreader.
It was the plaintiff's job to operate the lever of the stone spreader and, according to his testimony, when the truck returned to the job site loaded and ready for use, he mounted
the spreader. As he was in the act of seating himself on the seat, a fellow-employee, William Freeman, signaled the truck driver to back the truck to the desired spot. As the truck started to move backwards the seat of the spreader "turned back" or "tilted down" and plaintiff fell to the ground. As he attempted to get out of the path of the moving truck he was struck by the corner of the spreader and received the injury of which he complained. The plaintiff testified further that after his fall he examined the seat and found that there were two bolts missing from the bottom and one bolt missing from the back; that the bolt heads seemed to be "chewed up" and the bolts had slipped through and that the seat was supported by only one bolt near the top; and that the bolts that had pulled through the seat were still in the spreader.
William Freeman, plaintiff's fellow-employee, testified that he saw plaintiff attempt to mount the seat as the truck started to move; that the seat gave way and plaintiff then fell to the ground; that the bolts that held the seat to the spreader had broken or pulled out.
Henry Kimble testified, over objection of defendant, that he had examined the seat after the accident and found that only one bolt was holding the seat to the spreader and that the others were very loose so that the seat "sagged over" and "tipped sideways."
Defendant Vaccaro testified that he did not own the spreader, but had obtained it from one Louis Austin; that he had helped attach it to his truck and at the time had made an inspection of the seat by climbing over the seat and standing on it and that the seat appeared to be in safe condition although he admitted that he did not examine the bolts.
Reynolds, the defendant's truck driver, testified that he helped assemble the spreader on the truck the night before the accident; that he did not examine the seat but in the course of assembly, had occasion ...