Clapp, Jayne and Francis. The opinion of the court was delivered by Clapp, S.j.a.d.
Plaintiff, a policeman, while walking his beat one night tripped and fell over a formboard protruding two or three inches above the sidewalk. The defendant Rini and men working with him had laid the formboard, while constructing a new sidewalk in place of the old one. Plaintiff sued the following for his injuries: Monmouth Oil Company, the landowner; Anthony Agnellino, the general contractor who had apparently contracted to build a gas station and incidentally the new sidewalk; and Joseph A. Rini, who contracted with Agnellino to do all the work shown on certain drawings and specifications not in evidence. Whether Rini was an independent contractor or was in fact to some extent Agnellino's agent, or whether he shared with Agnellino in some measure the control over the work, constitutes one of the controversies here. The charge of negligence rests in considerable part on the failure to put up lanterns over the sidewalk and place barricades around the work while it was in progress.
The case was dismissed as to Monmouth Oil Company, but went to the jury as to the other two defendants. The jury
found no cause for action with respect to Rini, though he filed no answer and entered no defense; but it held Agnellino liable for apparently $9,026.25. He appeals.
There are a number of errors in the court's charge to the jury. The court charged:
"I further charge you that even if you should find that Rini was an independent contractor in his relationship with Agnellino, but if you find that Agnellino in employing Rini should have recognized that the work would require the creation during its progress of a condition involving a peculiar risk of bodily harm to others unless special precautions were taken, then Agnellino is equally liable with Rini * * *."
Agnellino's attorney objected to that portion of the charge on the ground that the principle involved, even if sound (Gibilterra v. Rosemawr Homes, Inc. , 19 N.J. 166, 171 (1955) speaks of a situation which would "necessarily" involve an unreasonable or peculiar risk of bodily harm), was not pertinent to the case, and that the charge was therefore prejudicial. The objection is well taken. Guzzi v. Jersey Central Power & Light Co. , 12 N.J. 251, 260 (1953). The mere reconstruction of a sidewalk under the conditions presented here is not the sort of work which necessarily gives rise to a peculiar risk of bodily harm and which therefore subjects an employer of an independent contractor to liability unless he himself takes special precautions. Cf. the cases holding that such work does not constitute a nuisance. Bush v. Margolis , 102 N.J.L. 179, 181 (E. & A. 1925); Kahn v. King Petroleum Corp. , 13 N.J. Super. 334, 338 (App. Div. 1951), and cases cited. Plaintiff contends that this part of the charge by its terms implicates Agnellino "equally * * * with Rini," and hence that a jury, which absolved Rini, could not have relied on it. But the absolution of Rini for some reason not adequately accounted for does not demonstrate that Agnellino was not prejudiced by the court's instructions here.
There are inconsistencies in various parts of the charge. Thus after the court had given instructions (as stated) subjecting Agnellino to liability if the jury found that he
should have recognized that the work involved a peculiar risk of bodily harm, the court later told the jury that the mere excavation of a public sidewalk for the temporary purpose of repair or construction does not constitute a nuisance. As one may surmise from the foregoing, we have difficulty in reconciling these instructions. Cf. Gibilterra v. Rosemawr Homes , 32 N.J. Super. 315, 318 (App. Div. 1954), affirmed 19 N.J. 166, 171 (1955).
Again, the court told the jury not only that Agnellino should be held liable as above stated with respect to a peculiar risk of bodily harm; but also that he should be held if Rini was not a skilled and competent subcontractor (there was no testimony on this subject); and further that he was liable along with Rini if the failure to provide lights or barricades was due in part to
"Agnellino's failure to promptly and timely deliver to Rini or to the place of work supplies and materials." (Italics added. There was no testimony as to any failure ...