Goldmann, Conford and Haneman. The opinion of the court was delivered by Conford, J.A.D.
[60 NJSuper Page 59] Plaintiff Cross was a pipe fitter-welder employed by the third-party defendant Truskey Industrial Pipe Fitters, Inc. ("Truskey," hereinafter), in connection with the latter's subcontract to install plumbing and heating equipment in a large, four-story building being erected in Camden for the Campbell Soup Company. The general contractor on the project was the defendant, also third-party plaintiff, Robert E. Lamb, Inc. ("Lamb," hereinafter). Plaintiff's right hand, mainly the three middle fingers, was severely and permanently injured when a heavy length of iron pipe fell on it as he was bringing it into the
building as it hung suspended from an outdoor hoist being operated by an employee of Lamb. He brought this action against Lamb for his injuries and consequent losses, and Lamb filed a third-party complaint against Truskey, invoking an indemnification agreement entered into between them as part of the subcontract.
The jury returned a verdict of $110,000 in favor of the plaintiff against Lamb. It also answered special interrogatories submitted to it by the court to be answered in connection with the third-party complaint should it find a verdict for plaintiff against Lamb. It answered in the affirmative the question whether there was negligence by Lamb through its agents and employees which proximately caused plaintiff's injuries; and in the negative a similar question as to Truskey's negligence. Thereupon the court granted Truskey's motion for dismissal of the third-party claim. On a motion for a new trial by Lamb the court reduced the verdict to $80,000, ascribing its action to the probable failure of the original verdict to reflect the factor of the capitalized present value of plaintiff's loss of future earnings.
Lamb appeals, raising a number of points both in respect of its adjudicated liability to the plaintiff (emphasizing errors affecting the amount of the verdict) and the dismissal of its claim over against Truskey. We proceed to a recital of the general circumstances attending the accident.
Lamb had obtained and was using a hoist device, stationed alongside the building under construction, to bring building materials and supplies to various floors of the structure. The apparatus was operated by a Lamb employee, West. While used primarily by Lamb for its own operations, it was available for the use of subcontractors at a fixed scale of charges, but only under West's operation. The hoist functioned in two ways: (a) through a conventional elevator-cage inside the steel hoist structure; and (b) by a cable and hook suspended over the top of the hoist structure and thence over an outrigger or "Chicago boom" attached to the structure about one-third below the top. A heavy metal ball was
attached to the cable a short distance above the hook. Both the elevator and the Chicago boom cable were raised and lowered by a winch-hoist powered by a gasoline motor on the ground nearby, equipped with foot-brakes and "dogs" for holding either lifting apparatus in fixed position in the course of use. All of this apparatus was controlled, maintained, and operated exclusively by West. While its vertical position was fixed, the Chicago boom could be swung laterally in either direction from the ground by a "tag-line" attached to the cable.
On July 29, 1957 plaintiff and three fellow-employees of Truskey were engaged, in cooperation with West, in the raising of a 4-inch, 20-foot iron pipe, weighing 275-300 pounds, from the ground up to and through a fourth-floor window-opening in the building under erection. As had been done before, the pipe was to be raised with the cable and Chicago boom. The Truskey men attached the pipe to the hook by means of a "choker," or sling device, one loop of which was affixed tightly around the pipe at about five feet "off center" and the other loop suspended from the hook. Peterson, a Truskey employee waiting with plaintiff on the fourth floor to receive the pipe and bring it into the building, signalled to Fletcher, another Truskey man, standing on the ground, who relayed the signals to West. West could not see above the second floor. The first signal was to raise the cable. West lifted the pipe too high above the window, then lowered it on signal, but below the window level, and then, again on signal, raised it slowly to a point where the bottom end hung 12 to 18 inches above the sill, and about six to ten feet from the building wall, stopping there on Peterson's signal relayed by Fletcher. The Chicago boom was then swung laterally toward the building by Groomes, another Truskey man on the ground, using the tag-line under the direction of Fletcher. By pulling on the line Groomes was able to maneuver the hanging pipe to a point near enough to the window to be handled by plaintiff. At that stage, West, according to his testimony, was waiting
for another signal to slowly lower the pipe so that it could be brought all the way into the building. The signal never came. After he "held the load" for what seemed to him 15 or 20 minutes (at another point he said five or six minutes), without moving the cable, he learned of the accident. He denied that he had dropped or "slacked off" the cable. Plaintiff testified he had gotten hold of the pipe to bring it in, his right gloved hand around the end of it, and brought it to the window sill, when "the whole load comes down * * * the pipe load and all," mashing his hand and fingers against the sill. Peterson described the occurrence: "all of a sudden everything came down * * *. The cable, the ball and the choker * * * everything was hanging inside the building." The choker was still attached to the hook, but had slid halfway down the pipe. Fletcher testified that before he could give the intended last signal for a lowering of the cable, the pipe and cable "all of a sudden" came down, the pipe "glanced" and in "hitting" the wall loosened the choker. When he ran up the stairs to help Peterson, he saw the ball (weight) inside the wall and below the sill. Groomes testified that he was pulling tightly on the tag-line to keep the pipe near the building in a position to be taken in when the cable and line "let loose and I went off balance."
There was testimony, undenied, that immediately before the accident the ball and hook of the cable were between the top of the window and the roof; and that immediately after, they were inside the building below the lower sill of the window. These facts, together with all the other surrounding circumstances, make the conclusion almost irresistible that the descent of the pipe causing plaintiff's injury was due to a sudden dropping or slipping of the cable for a distance of at least several feet.
Lamb contends there was plain error when the trial court charged the jury as follows:
"The third affirmative defense asserted by the defendant Lamb is that this accident and the resulting injury was proximately caused by the negligence of the Truskey Company through its employees. In determining this question, you are to apply the same legal definitions and principles as heretofore stated. The burden is likewise upon the defendant Lamb to support this defense by the greater weight of the believable testimony. If the defendant Lamb has satisfied you that this contention is true by the greater weight of the evidence, then there can be no recovery by the plaintiff, and your verdict should be 'no cause for action.' Please keep in mind, that the question of Truskey's negligence, if any, is raised by Lamb only as a defense to the action brought by the plaintiff against the Lamb Company. In no event can you return a verdict against Truskey on the plaintiff's suit, since Truskey is not a defendant therein. Your only verdict in this case can be either for the plaintiff and against the defendant Lamb Company, or for the Lamb Company and against the plaintiff. The only one that the plaintiff can recover against is the defendant Lamb, if he has established by the preponderance of the evidence that this accident resulted either from the sole negligence of Lamb, or from the joint and concurrent negligence of Lamb and Truskey, and that such sole, or concurrent, or joint negligence was the proximate cause of the accident and injuries." (Emphasis ours)
The stress of the objection is the imposition upon Lamb of the burden of proving that the accident was caused by the negligence of Truskey. There was no objection to this portion of the charge, but defendant asserts the claimed error was so serious and prejudicial as to require a reversal of the verdict on liability on the theory of "plain error." R.R. 1:5-3(c). It is clear that the portion of the charge specified was technically erroneous, since the burden of proof, or ultimate persuasion of the jury, as to defendant's negligence and its causal proximity to the injurious accident always remains with the plaintiff, including consideration of the factor, if raised by the proofs, as to whether the accident was produced solely by the negligence of another. Cella v. Roth , 113 N.J.L. 458 (E. & A. 1934). Actually, the matter of the responsibility of one other than the defendant is "not really one of separate defense," but within the scope of a general denial, ibid. (at page 463), and the trial court was probably misled into the giving of the instruction now
complained of by Lamb's setting up of Truskey's negligence as a separate defense in its answer.
The rule of plain error is sparingly applied, Valls v. Paramus Bathing Beach, Inc. , 46 N.J. Super. 353, 358 (App. Div. 1957), and only where it is clear that the erroneous action has produced a failure of substantial justice, In re Stern , 11 N.J. 584, 590 (1953); Ford v. Reichert , 23 N.J. 429 (1957). We do not think this has been shown here. First, the trial court in other portions of the charge painstakingly explained that in order for the plaintiff to recover he had the burden of satisfying the jury by the greater weight of the believable testimony that there was negligence on the part of Lamb and that such negligence was the proximate cause of the injuries sustained. "Proximate cause" was adequately explained. In specific reference to the subject matter under discussion, the charge informed the jury that:
"The only one that the plaintiff can recover against is the defendant Lamb, if he has established by the preponderance of the evidence that this accident resulted from the sole negligence of Lamb, or from the joint and concurrent negligence of Lamb and Truskey and that such sole, or concurrent, or joint negligence was the proximate cause of the accident and injuries."
The jury was thus, in effect, told that unless plaintiff satisfied them that Lamb was either solely or partially responsible, proximately, for the accident, he could not recover. This would, of course, require him to negative by his proofs the contingency that Truskey's negligence, if any, was solely responsible. Such a conclusion was hardly, if at all, possible by any reasonable evaluation of the proofs. The accident happened because the cable fell, dropping the pipe with it. No evidence in the case indicates that any of Truskey's men could have been responsible for that. None of the proofs fairly warranted an inference that the pipe was not firmly attached to the cable, or that the giving of the signals or the maneuvering of the tag-line caused the sudden descent of the cable. While it is possible, but barely, that some act
or default of one of the Truskey men contributed in some way to the plaintiff's injury, this does not derogate from the overwhelmingly established thesis that a major share of the fault for the accident and injury, at the least, was ascribable to defects in the machine or the negligence of the operator, both of such factors within the legal responsibility of Lamb as maintainer and employer. (Lamb has not suggested at any time that the accident was caused by a defect in the machinery; its position has been, alternatively, that the accident was due solely to the negligence of the Truskey employees or that West's negligence, if any, was attributable to Truskey as his special employer because in control of his work while the pipe was being raised; as to the latter, see II., infra.)
It thus appearing that negligence attributable legally to Lamb must have played a substantial causative role in the accident, and since Lamb's liability to plaintiff therefor would not be lessened by the contribution, if any, of negligence by Truskey men to the accident, no failure of substantial justice can have arisen from the court's erroneous charge that Lamb had the burden of showing that the accident was solely the fault of Truskey.
Defendant Lamb argues that the charge of the court was confusing and erroneous in relation to its contention that at the time of the accident West had temporarily passed from the employ of Lamb into that of Truskey for purposes of legal responsibility for any negligence of West in the raising of the pipe. That argument is based on the position that since West was being signalled by Truskey employees he became part of the Truskey employee group. The contention is that in effect the court charged the jury that it must consider Lamb to have been West's responsible master rather than Truskey. No objection was raised to this portion of the charge. We therefore examine the nature of the defect asserted to see if "plain error" is made out. We will not
set forth the portions of the charge challenged in this regard as we are satisfied that under the evidence Lamb was in fact and in law the master of West and responsible for his negligence, within the application of the rule of respondeat superior , so that the charge of the court could not have harmed the defendant Lamb in this respect.
The law relating to the subject matter of the present discussion has taken definitive shape since the concurring opinion of Judge (now Justice) Schettino in Devone v. Newark Tidewater Terminal, Inc. , 14 N.J. Super. 401, 406-419 (App. Div. 1951), the philosophy of which was recently followed by us in Viggiano v. William C. Reppenhagen, Inc. , 55 N.J. Super. 114, 118-119 (App. Div. 1959). In the latter case we said:
"Since an employer is responsible for the tort of his employee acting within the scope of the employment whether or not the employer was controlling the details of the work at the time the tort occurred (e.g. , the driver of a delivery truck as an employee of the defendant), there is no reason in logic or policy for abating that liability of the general employer in such a situation as that before us [negligent injury of a third person by the employee] on the basis of whether or not the contracting-borrowing employer was exercising any degree of control or direction of the employee in respect to the execution of the details of the work to be accomplished with the supplied equipment, so long as what was being done with it was within the contemplation of the supplier in renting it to another.
As pointed out by Judge Schettino, the special employer (rentee of the equipment and operator) may make himself also liable by exercising control in a negligent manner, or make himself solely liable by directing the employee to do an act beyond the service contracted for. (14 N.J. Super. , at page 415.) But as long as the work being done is within the general contemplation of the supplier of the equipment and operator, its performance is furthering the interest of the general employer in the sense that it is carrying out the latter's contractual obligation. This is not less so because the operator is following directions of the so-called special employer in respect to work details. That such direction would or might occur is in the contemplation of the contracting parties." (Emphasis by the court)
In the present case a jury could not reasonably have disagreed with the following facts and conclusions. Notwithstanding
Lamb's letting Truskey have the use of its equipment and West's services in operating it for a fixed hourly charge, the work West was doing in lifting pipe on the cable was nevertheless within Lamb's general contemplation, and this none the less because the work required West to follow signals or directions of the Truskey people. See Larocca v. American Chain and Cable Co. , 13 N.J. 1, 7 (1953). In doing that work West was furthering the interest of his general employer, Lamb, in that the purpose of letting out the equipment was being fulfilled. There was no evidence that Truskey had West do anything beyond the service contracted for. Therefore, under the cases cited, Lamb remained liable for the results of West's negligence, whether or not Truskey might have been concurrently negligent, a circumstance of no relevance insofar as plaintiff's action against Lamb is concerned (plaintiff was not suing Truskey). The present issue is not controlled by any consideration as to whether ...