Clapp, Jayne and Francis. The opinion of the court was delivered by Jayne, J.A.D.
At the conclusion of the evidence adduced by the plaintiff to establish the defendant's liability, the court granted the defendant's motion for an involuntary dismissal of the plaintiff's alleged cause of action.
The following summary of the evidence is necessarily composed in a fashion supporting most favorably the plaintiff's factual allegations. McKinney v. Public Service Interstate Transp. Co. , 4 N.J. 229, 243 (1950); Gentile v. Public Service Coordinated Transport , 12 N.J. Super. 45, 49 (App. Div. 1951).
The authorized department of the United States Navy resolved to repair and renovate its ammunition pier at Leonardo, New Jersey, and to effectuate that project contractually engaged Spearin, Preston & Burrows to perform the construction work, including the electrical installations. The Spearin company subcontracted the performance of the electrical work to the defendant A.A. Pruzick & Company, and also subcontracted other work such as the laying of planks, railroad ties and rails to the Charles F. Vachris Co., Inc., in the service of which the plaintiff was employed as a laborer.
Expedition was required in the fulfillment of the contract, and the plaintiff and others served on the "night shift" from 4:00 P.M. to 2:00 A.M., with a recess of a half-hour for a lunch at 9:00 P.M. A qualified electrician arranged the wiring and sockets for the transmission of current to portable lamps which were suitably stationed at the particular locations where the plaintiff and his fellow servants were to work. It is evident that it was the mission and occupation of the electrician to provide the requisite illumination when and where needed by the employees of the Vachris Company while they were engaged in their work at night. The length of the pier is measured in miles.
On the evening of June 11, 1952 darkness began to envelop the vicinity of the pier. The plaintiff's foreman consulted the electrician. When the plaintiff, having finished his lunch, undertook to resume his employment at 9:30 P.M., the nearest light to the location of his work was distant some 300 feet and the locality of his work was described as "pitch dark" and in a state of "complete darkness."
The task of the plaintiff's employment was to help in the removal of old planks, ties and rails on the deck of the pier and in the replacement of new ones. Upon arriving at his place of work, he noticed indistinctly some object which he should remove. In undertaking to lift it he momentarily recognized it to be an electric drill. Upon grasping its handle his fingers or hand evidently contacted the obscure switch immediately below the handle, and the drill suddenly began noisily to operate. The plaintiff was startled, jumped backward, tripped and fell over some planks or rails, thus sustaining the bodily injuries for which he sought the recovery of compensatory damages in the present action.
The trial judge expressed two reasons for granting the motion for an involuntary dismissal of the action. The one: "The evidence as I see it, now clearly indicates that this defendant company had no control whatsoever over the electrician, who was supplied by it to the plaintiff's employer. This I conclude in the consideration of the plaintiff's proof." The other reason: "The evidence here does not suggest that
the proximate cause of the plaintiff's injury and damage was the lighting or the failure to light the area in question."
In our survey of the evidence anent the first reason stated by the trial judge, we observe that on March 18, 1954 the deposition of the president of the defendant was taken and admitted in evidence at the trial on May 31, 1955. From that deposition the testimony of fundamental pertinency can be harvested. The following quotations are liberally selected and with impartiality.
"Q. When you say, 'they,' whom do you mean? A. Vachris. I don't recall but I know they worked during the night and we furnished them an electrician to maintain lights for their operations. That was just a verbal contract with them. We billed them for the man's time on a cost-plus basis.
Q. You are referring now to the electrician that you furnished on a cost-plus basis. A. He was on our payroll.
Q. The electrician was on your payroll and you furnished him to the Vachris Co.? A. Yes, sir.
Q. And the electrician was your own employee, on your payroll? A. Yes.
Q. What was his job? What were his duties there? A. His duty was to maintain any lights that they might require and to plug in the trailers and run some wires for them, give them light wherever they requested light.
Q. Well, then, am I correct in saying that the duty of this electrician was to furnish whatever lights were necessary or required by the Vachris Company during the course of the work it was doing at this pier? A. That they were doing. We weren't working there at the same time they were.
Q. The work that the Vachris Company was doing on the pier. A. Yes.
Q. Did anyone -- either yourself or anyone from your company -- supervise this electrician? A. No, sir.
Q. He knew his job, I suppose. A. No question in my mind.
Q. What was his name? A. There isn't any one individual every night. On that type of work they have different men. Say a man would work two nights, it would be too much for him to work in the daytime and work at night. They have a man say tonight and tomorrow night and then another fellow the following night, and they would rotate the men and various men would do it.
Q. So that you would have various electricians of your firm who do this work? A. No, we hire men as we need them.
Q. Did the electricians who would be doing the work you just described have a boss over them? A. No, sir. By that do you mean a boss as far as my company --
Q. As far as the lights which they were to use were concerned, who furnished those lights? Would you ...