Goldmann, Freund and Haneman. The opinion of the court was delivered by Freund, J.A.D.
Plaintiff, widow and sole dependent of William Ginnelly, instituted this action as administratrix ad prosequendum to recover the pecuniary loss sustained by her resulting from the alleged wrongful death of her husband while in defendants' warehouse. N.J.S. 2 A:31-1 et seq. The decedent was in the employ of the O'Neill Detective Agency and was assigned as a guard on the premises of the defendant corporations, The Continental Paper Company and Alford Cartons, in the Borough of Bogota, N.J. He sustained a fractured skull and other injuries causing death on Sunday, April 3, 1955, undoubtedly while attempting to place a new electric light bulb in a fixture hanging from the ceiling of the second story of the warehouse. Defendants' negligence, as stated in the complaint and in the pretrial order, was in supplying Ginnelly with a defective ladder which assertedly collapsed as he attempted to make an ascent thereon to come within reach of the suspended socket.
A jury of the Law Division found evidence sufficient to support the claim of negligence on the part of the defendants and, over defense motions for judgment made at the close of the proofs and after the return of the verdict, judgment was entered in favor of the plaintiff for $33,500. A subsequent motion for relief from the judgment under R.R. 4:62-2(b), (c) and (f) was denied. Defendants appeal from the judgment as entered and from the trial judge's unchanging refusal to grant relief therefrom.
Some of the facts are not in dispute. Pursuant to a contract with the O'Neill Detective Agency, defendants' premises were patrolled by about eight or nine armed and
uniformed guards employed by O'Neill. They worked in three shifts, three guards on duty on each shift. The guards were supervised generally by a Captain Norman D. Coyle, who stationed himself at a gatehouse. In making their rounds, the guards were required to call in to Captain Coyle every hour. They were to inform him of anything unusual on the premises. It was Coyle's job to bring such matters to the attention of the appropriate representative of the defendants.
The accident occurred on April 3, 1955, Palm Sunday. Ginnelly reported for work at 8:00 A.M. and went about his rounds, which covered defendants' three buildings. He was required to make "21 rings" of the two-story building known as the warehouse. The plant was not operating that day, and there was but a "skeleton crew" on hand doing repairing work "and stuff like that." On Sundays, fellowguard Lawrence V. Orland replaced Coyle as supervisor at the gatehouse. As usual, Ginnelly called in to his temporary superior at 11:00 A.M. At noon he did not call in, nor at 1:00 P.M. Eventually Orland called the police to have a search made of the premises. At about 3:00 P.M. the decedent was found lying on the first floor of the warehouse at or near a stairwell containing a stairway leading to the second floor. He was dead. Next to him lay the upper section of a two-piece ladder, a shattered light bulb, a paper book, a uniform police cap, and a pair of eyeglasses. The bottom section of the ladder was found upstairs on the second floor. Near the base of the bottom portion of the ladder, an electric light bulb carton was lying on the floor. A uniform coat was hanging from an upright and Ginnelly's revolver was on a crossbeam next to it.
There were no eyewitnesses to the decedent's tragic death, but what befell him is a matter of fair inference from the proofs. The light fixture hung directly over the stairwell, about 16 feet above the floor of the second story. There was testimony that on Saturday, April 2 the bulb therein had been burned out, and it was still out when the police
found Ginnelly on Sunday. It is clear that the decedent had tried to replace the light bulb and that he had approached it by means of a ladder.
The particular ladder he used was identified as being one which had been used by defendants' maintenance men in the two-week period prior to the accident. The photographs in evidence show the words "Paint Shop" on the ladder. It was composed of two sections. Each section was 12 feet long, the ladder having a maximum extension of 24 feet. Ordinarily, however, it was used to reach heights of 14 or 15 feet, and the testimony indicates the ladder was unsafe if used to approach a point more than 18 feet from the ground. At the base of the ladder were metal safety skids on each of the ribbon strips. Attached to each of the two skids was a rubber mat which, when the ladder was operating properly, gripped the floor and prevented slippage. There was a set of L-shaped iron rungs or clips on each section which were intended to hold the ladder firm when it was extended. The ladder had no rope. Although the ladder was impounded by defendants on the day of the accident, it was not produced at the trial by them, nor was it subpoenaed by plaintiff. R.R. 4:46-2.
The width of the stairwell was 7' 2"; its length, 14' 6". As one came up the stairs to the second floor, he would find upon reaching the top step that the distance from the steps to a cinder-block wall on his right was slightly over 2 feet. On his left would be found a railing, about 3 or 4 feet in height, which protected users of the second floor from stepping into the stairwell.
Ginnelly had moved the base of the ladder close to this railing, rested the top section against the wall, and in that fashion attempted to reach the light fixture over the stairwell. While he was on the ladder, the two parts became disengaged. The top section and Ginnelly plunged down into the stairwell and were found on the first floor. The bottom section came to rest in an angled position, the top rungs thereof on the railing and projecting over the stairwell,
and the base thereof on the floor, 10' 4" from the stairwell.
In addition to the foregoing, the police found fresh skid marks running from the stairwell to the point where the base of the ladder had come to rest. Two of the marks were parallel, the distance between them being the same as the width of the ladder. A third skid mark on the floor was shorter and more irregular. On the wall were two skid marks starting 17' 6" from the floor and running "upward." These marks were 5' to 7' long and were the same width as the upper portion of the ladder.
The theory of plaintiff's case was that the safety rubber skids at the base of the ladder were worn out and that such defect proximately caused the ladder to slip away from the railing and wall, with the result that Ginnelly was projected onto the steps leading to the first floor. Additionally, negligence was predicated on the fact that the ladder did not have a rope as an added safety feature; a rope, it was claimed, would have prevented any slippage even if the iron clips jumped out of place, or at least would have prevented the top section from becoming totally disengaged from the bottom section in the event of slippage. In connection with the last hypothesis, plaintiff reasons that if the ladder had remained an integral assembly, the ...