Goldmann, Freund and Kilkenny. The opinion of the court was delivered by Kilkenny, J.A.D.
Plaintiff Rommell, an employee of Commercial Contracting Corporation, hereinafter referred to as "Commercial," sued defendant United States Steel Corporation, hereinafter referred to as "Steel," in the Superior Court, Law Division, Mercer County, claiming that he was injured through Steel's negligence while he was working for Commercial at Steel's plant in Fairless Hills, Pennsylvania.
In Rommell's action, defendant Steel, as a third-party plaintiff, joined Commercial as a third-party defendant, contending that if Steel were found liable to Rommell, then Commercial would be liable to Steel by virtue of certain provisions of the written contract entered into between Steel and Commercial on August 19, 1957. By this contract Commercial had agreed to install a Number 2 shear line in one of Steel's buildings at Fairless Hills aforesaid.
There was a jury trial which resulted in a $75,000 verdict in favor of the plaintiff and against Steel alone. The trial court dismissed Steel's third-party suit against Commercial, without any submission thereof to the jury, on the ground that Commercial could not be liable to Steel under their contract if the jury found that Steel's negligence alone, or in combination with any negligence attributable to Commercial, resulted in the injuries suffered by Rommell. Thus,
the case was given to the jury to resolve only the issues of Steel's alleged negligence, regardless of whether it was sole or concurring, active or passive, and the contributory negligence, if any, of Rommell, and damages.
Steel moved for a new trial on the grounds that the entire verdict was against the weight of the evidence, was excessive, and because of the trial court's refusal to submit to the jury certain specific interrogatories as to Commercial's negligence and liability under the contract, which Steel requested the trial court to submit. The trial judge denied Steel's motion for a new trial and upheld his dismissal of Steel's third-party action, but found that the $75,000 verdict in Rommell's favor was "excessive as the result of mistake." The trial judge then said:
"I should [ sic ] reduce the verdict to the sum of $40,000 with the proviso that if the plaintiff and defendant Steel can agree that reduced amount is an acceptable amount, they may do so. * * * If, however, the parties plaintiff and original defendant cannot agree on the amount of $40,000, then when you so inform me, I will arrange for a new trial on damages and damages only."
We observe at the outset that this form of remittitur is improper. When a trial court regards the verdict as sufficiently excessive to warrant reduction, it should in such case state that, unless plaintiff is willing to take the suggested reduced amount, the verdict will be set aside as to damages. The order should not be made contingent upon defendant's willingness to pay the reduced amount. Marty v. Erie R. Co. , 62 N.J. Super. 458, 461, 467 (App. Div. 1960), certification denied 33 N.J. 387 (1960). Since the $40,000 sum was not acceptable to Steel, though it was acceptable to Rommell, the court, taking the improper view of the remittitur , set aside the verdict as to damages and ordered a new trial as to damages only.
The judgment was made final as to the dismissal of the third-party action, pursuant to R.R. 4:55-2, thus giving Steel the right to appeal therefrom, even though
there has not yet been a retrial on damages of the original action by Rommell against Steel.
In its appeal from the trial court's judgment Steel alleges errors in the conduct of the trial, asserts abuse of discretion in the trial court's failure to set aside the $75,000 in its entirety, and contends that the trial court's construction of the contract between Steel and Commercial, by which it concluded that Commercial was not liable thereunder to Steel on the facts of this case, was erroneous.
It is agreed by the parties that any conflicts between New Jersey and Pennsylvania law will be resolved by applying Pennsylvania law, since the accident occurred in Pennsylvania, and the contract between Steel and Commercial was executed and performable in Pennsylvania.
Rommell was injured on December 18, 1957, while working for Commercial on Steel's property. Rommell, his foreman, and three other members of his work gang, were engaged in moving steel plates, about 8' x 10' in dimensions, weighing about 4,800 pounds each. The plates were suspended from a truck, called a fork lift, or "cherry picker," by means of cables with hooks attached to the end of them. The hooks were inserted into holes in the steel plates which were being moved. The plates were carried at a height of 8 to 14 inches from the floor or ground. While moving a particular plate, with the plaintiff and three other men guiding the plate at each of its corners, the fork lift was stopped in order that two ram tractors of Steel could pass by. The contract gave Steel priority of movement. At this moment the plate was suspended over the existing and apparently embedded floor plates in the Number 1 shear line. Steel's ram tractors moved across the floor plates in passing Commercial's fork lift. Steel's first ram tractor went across without incident. There was testimony that when its second ram tractor traversed the floor plates, one plate, evidently loose, bounced up from the ground and struck the plate suspended from Commercial's fork lift. One of the hooks gave way and the suspended plate fell on Rommell's left foot, resulting in the
loss of portions of all of his toes, on that foot, although he had lost one joint on his second toe in a prior accident. For this injury and his consequential damages, Rommell sued Steel and obtained the jury verdict aforesaid.
There was evidence in this case that Commercial had agreed in paragraph 16 of its contract with Steel that the safety of all persons employed by Commercial on Steel's premises would be the sole responsibility of Commercial, and that Commercial would take all measures and precautions to prevent injuries to its employees; that Commercial had inspected the site where the work was to be performed, and was aware of the conditions at the site; that Commercial's employees had been engaged in installing the Number 2 shear line from August 19, 1957 to December 18, 1957, the day plaintiff sustained his injuries; that Commercial's contract was to be carried out on the west side of the building and the Number 1 shear line on the east side was in operation during the entire period; that each of Commercial's employees was aware of the existence of the operation of the Number 1 line across the short distance of the wooden block truck aisle from the site of the work; and that Commercial's employees had observed the action of the loose floor plate when traversed by Steel's ram tractors on many occasions prior to the date of Rommell's injuries. While Rommell stated that he had never seen Steel's vehicles pass over the conveyor line, he did admit that he had seen these plates "flip." Other Commercial employees stated that they saw the plates move two or three times each week.
There was proof at the trial from which the jury could find that Commercial was negligent, and that its negligence may have at least concurred causatively in the happening of the accident. The hooks which held the suspended plate were made by one of Commercial's employees, by bending ordinary bar stock under heat. Steel's expert described the hook as one he would "not prefer"; that the notching condition caused by the bending of this bar stock was "detrimental," though he would not state to what degree. The
jury could find that one of the hooks holding the plate was defective. Besides, Steel predicated its contention as to Commercial's negligence on Commercial's duty to keep its employees away from the obvious danger resulting from conducting operations in such close proximity to the passage of Steel's ram tractors on the Number 1 line; on Commercial's failure to use suitable guiding devices so that the plaintiff and his co-workers would not be obliged to remain alongside the carried plate; and the carrying of the plate so low that an existing floor plate, whose tilting characteristics were so well known, might strike it.
The trial court ruled that if Steel was found to be negligent, then Commercial's concurring negligence, if any, would not relieve Steel from the obligation to pay Rommell, and would not entitle Steel to any relief under the contract against Commercial. Therefore, the trial court refused to allow the jury to consider Commercial's alleged negligence, denied Steel's specific written questions aimed at eliciting special findings by the jury as to whether the accident was due to the sole negligence of Steel or of Commercial, or the concurring negligence of Steel and Commercial, and dismissed Steel's third-party action. In brief, the trial court reasoned that any negligence by Steel, sole or concurring, active or passive, entitled Rommell to a recovery, unless he was contributorily negligent; and any negligence by Steel, active or passive, disentitled Steel to any recovery against Commercial, regardless of their contract, and even though Commercial's negligence, active or passive, may have concurred in causing the accident.
Assuming that Steel was negligent, as the jury evidently found, we cannot tell from its general verdict whether it found Steel solely negligent or concurrently negligent with Commercial. The court's refusal of Steel's requests for special findings as to sole and concurring negligence has resulted in this factor's being unknown. While Steel's negligence, sole or concurring, ...