Price, Haneman and Schettino. The opinion of the court was delivered by Price, S.j.a.d.
Appellant Virginia Stevedoring Company (hereinafter referred to as Virginia) seeks the reversal of a judgment against it for $15,000 entered in the Superior Court, Law Division, in favor of respondent Lawton, an employee of American Export Lines (hereinafter referred to as American). The judgment represented compensation for personal injuries suffered on September 23, 1954 and consequential damages allegedly sustained as the result of the negligence of one of defendant's employees.
Defendant's application for a new trial was denied. It appealed alleging that the trial court committed prejudicial error (a) in its charge to the jury, (b) in rejecting certain of defendant's requests to charge, (c) in its examination of one of defendant's witnesses and in commenting on his testimony,
(d) in refusing to set aside the verdict as against the weight of the evidence and excessive.
The record discloses the following facts: On September 23, 1954 plaintiff was engaged for American in his duties as a checker of cargo at Pier F in Jersey City. While so employed he was struck on his left foot by a plank called dunnage, weighing approximately 30 pounds. These planks are of various sizes and are placed under the cargo to keep it dry while on the dock. As the cargo is being removed it becomes necessary to take out the dunnage and place it to one side in order to provide operating space for hand trucks used in removing the remaining piled cargo. The plank in question had slipped from the hands of a laborer, Anthony Parisi, as he was carrying it shoulder-high past the place where plaintiff was standing. The plank struck plaintiff's left foot and he fell to the floor. Parisi and another laborer assisted plaintiff to an erect position and helped him walk about ten feet to a case or box on which they seated him. The men returned to their work. Shortly after they noticed plaintiff unconscious on the pier floor near the box. His head was bleeding and his bladder had emptied. He was given emergency treatment and was removed to a hospital by ambulance.
This suit was instituted against Virginia upon the theory of respondent superior and was based on the claimed negligence of Parisi, alleged to be a Virginia employee. Defendant asserted that Parisi was not its employee but was employed by plaintiff's employer American, and that plaintiff's sole remedy was against American under the Workmen's Compensation Act. N.J.S.A. 34:15-1 et seq.
Virginia had entered into a contract to furnish American with labor for stevedoring and loft or terminal operations. Defendant was the stevedore for American. By virtue of its contract with American it was responsible for supplying the labor and equipment for loading and discharging vessels owned by American. Under a clause of the contract defendant was responsible also for supplying labor used in discharging cargo from the dock to the trucks or lighters of the
ultimate consignees. Specifically, the stevedore gang loads and discharges cargo from docks to ships and from ships to docks; the loft gang discharges cargo from the docks to trucks and lighters as aforesaid.
This clause of the contract dated January 1, 1952 between American and Virginia, which contract was received in evidence, was as follows:
"2. EXTRA LABOR SERVICES: When required to supply extra labor the Contractor will render its charges therefor at the extra labor man hour basis for the following described services unless otherwise specified as cost plus.
m. Supplying extra labor for any other services when authorized."
Lawton's duty as checker on the day in question required him to see that the proper cargo was allocated to a given consignee in accordance with American's delivery tally sheet.
The men who worked in the loft were referred to as the extra labor gang. All such laborers were required to be "validated" by the Waterfront Commission of New York Harbor. They were hired by John F. Manning, who testified that he was employed by Virginia as a hiring agent. The laborers then reported directly to Pier F as long as work was available. The checker would tell them what cargo should be moved, but a plaintiff's witness said that the checker did not attempt to direct the manner in which such operations should be carried out. Laborers received a brass check from Virginia's timekeeper with the words "Virginia Stevedoring, 115 Kent Avenue, Brooklyn, New York" thereon. They were paid by Virginia and were required to surrender the brass check on payday. Virginia was thereafter reimbursed by American for the wages of the men plus a "percentage," described by defendant's witness Douglas W. Main as covering "clerical work, insurance and so on." Parisi testified that on the date of the accident he was a member of the extra labor gang furnished by Virginia, that he was an employee of Virginia and that Manning was his boss.
Frank Baumann, who asserted he was an employee of Virginia and had worked as a dock laborer since approximately 1939, testified as to the procedure employed in hiring dock workers under the auspices of the Waterfront Commission. He outlined the procedure as follows: that a laborer would report initially to the Commission office and be "validated," i.e. , certified as a proper person for employment; there a worker would be hired by a "hiring boss" and would report directly to the employer's place of business. The witness testified that he was hired by John Manning at the Waterfront Commission office and thereafter reported to American at Pier F in Jersey City; that since the inception of the Waterfront Commission in 1953 the daily "shape-up" has been abolished and at the end of the working day the employees are told whether they should report to the pier the next morning. He further stated that even then there was no guarantee of employment for the full day; the men were assured four hours pay upon reporting to the pier; thereafter the amount of available work would determine the number of hours they might be employed beyond that period. Baumann further stated that the checkers merely told them which bags on the dock were to be moved; they never attempted to direct the laborers in the method to be employed in accomplishing this assigned task.
John Manning testified that he was an employee of Virginia and was responsible for hiring the labor force in question. He further testified that it was his usual practice to confer with the checkers and assign his men in accordance with the delivery orders that the checkers had. If there were insufficient work to occupy the entire crew for the remainder of the day he selected those persons to be retained.
Stephen S. Abbate, superintendent of terminals for American, testified he was in charge of hiring all employees working for American at Pier F Jersey City. He testified that Manning, Baumann and Parisi were working for Virginia and not for American on September 23, 1954. Virginia's general superintendent Douglas W. Main, however, testified that the payment of the men by Virginia was done solely
as an accommodation for American who had no dock labor force on its payroll. He further testified that Parisi was working for American and not for Virginia and that Manning also was actually an employee of American whose name was similarly carried on Virginia's payroll to accommodate American.
Initially, defendant criticizes the court's failure to charge the jury on assumption of risk and contributory negligence, asserted by it to be embodied in the two following requests:
"9. An employee assumes all those risks which are ordinarily incidental to his employment as well as those dangers which are plain and obvious to a person of ordinary understanding and judgment. Therefore, if this incident and the resulting injury arose out of the plaintiff's employment as a checker and not any negligence on the part of this defendant, you must find your verdict in favor of this defendant, of no cause for action.
10. If you find that it was the plaintiff's responsibility to see that the cargo was properly broken down and delivered, and that plaintiff controlled the method and manner in which the work was to be done, and the injury to plaintiff resulted from the manner in which the work was performed, your verdict must be in favor of the defendant of no cause for action."
There was no specific request by defendant to charge the elements of contributory negligence. It insists that the foregoing requests submitted by it are sufficiently specific to include a request to charge the law applicable to contributory negligence. We find to the contrary.
Initially, we observe that although authority may be found for the proposition that the doctrines of contributory negligence and assumption of risk are identical such is not the law of this State. Ford v. Reichert , 23 N.J. 429 (1957); Klinsky v. Hanson Van Winkle Munning Co. , 38 N.J. Super. 439 (App. Div. 1955), certification denied 20 N.J. 534 (1956); Hendrikson v. Koppers Co., Inc. , 11 N.J. 600, 607 (1953). Defendant's request that the trial court charge the jury concerning assumption of risk did not, therefore, include therein a request to charge the concept of contributory negligence. No such request having been presented
by defendant nor any exception taken to the court's failure otherwise to charge with reference to the question of contributory negligence, defendant's present criticism of the trial court's failure to charge the elements of contributory negligence is without merit. We find no justification for invoking R.R. 1:5-3(c); R.R. 2:5.
The defense of assumption of risk in the case at bar was raised by the answer and preserved in the pretrial order. The facts rendered appropriate and ...