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Miller v. Muscarelle

Decided: May 1, 1961.


Conford, Freund and Kilkenny. The opinion of the court was delivered by Conford, S.j.a.d.


[67 NJSuper Page 309] Plaintiff brought this action in her representative capacity, seeking damages for the wrongful death of her intestate, Russell Miller, who died September 4,

1956 in an accident while working as a laborer on a construction project being executed by his employer, Jos. L. Muscarelle, Inc., at Paramus. The employer is not a defendant, having discharged its legal obligation to the family of the decedent in accordance with the Workmen's Compensation Act, R.S. 34:15-1 et seq.

The defendants here are Fields, foreman of the labor crew of which Miller was a member when the accident occurred; Arthur Fowler, manager in over-all charge of the particular construction project; Charles W. Muscarelle, general super-intendent on the job but under Fowler in authority thereon, although a director, officer and stockholder of the corporate employer; and Joseph L. Muscarelle, president, executive head and principal stockholder of the corporation. It is claimed by plaintiff that all of these were in one respect or another chargeable with negligence causative of the fatal accident and therefore individually liable to the plaintiff in tort for damages in compensation for the wrongful death. Plaintiff assented to an involuntary dismissal as to two other stockholder-executives of the concern, Burghardt and Collins, originally made defendants. At the conclusion of plaintiff's proofs the trial court granted motions for involuntary dismissal as to all the remaining defendants. This appeal is from that ruling.

The construction job here involved was the erection of a large shopping center known as the Garden State Plaza. The particular unit at which the accident took place was the Bamberger Building, a two-story structure. On the day of the accident the brickmasons had erected a wall to a height of about 15 feet. Brick and mortar were to be carried to them by means of a portable conveyor described as 30 to 40 feet long, perhaps two feet wide, mounted on a wheel-carriage located at the rearmost end. Its main section consisted of an endless belt driven by a small gasoline engine. The rig as a whole did not, however, move under its own power, but required hauling, towing or manual pushing to relocate it as need would dictate. The conveyor apparatus

proper was mounted on a boom. Raising and lowering of the conveyor's front end was accomplished by means of a hand winch at the rear end, from which cables ran to and around small steel dolly-wheels at the end of the boom. The underframe of the conveyor proper provided a "track" upon which the dolly-wheels might roll. Winching the cable in would raise the boom and the front end of the conveyor.

It became necessary, the day of the accident, to move this machine up a ramp to a platform four feet above ground in order to feed materials to the masons high on the wall. Fields directed a gang of men, including Miller, to roll it up the ramp. There was testimony that Fields, himself, participated in the pushing of the rig. The number of men so engaged is variously estimated at seven to twelve, equally distributed between both sides. Miller was on the right side, near the wheels. The wheel carriage of the conveyor had reached the foot of the ramp and may have just begun the ascent, when the conveyor itself, then at its front end about 15 feet above ground, suddenly collapsed, crushing Miller to death.

Fields testified on depositions at the call of plaintiff and explained the event:

"Q. In order to pull or push this thing up the ramp, where did you station the men with respect to the length of the conveyor? A. In a position that you could elevate that conveyor in a degree where the conveyor can balance itself.

Q. What happened. A. * * * what I saw happen, pushing it, the fellows on the left hand side got ahead of the ones on the right, causing the conveyor to twist, and on that twist it caused the conveyor to jump the track and collapse. * * * when the cable was loose on the twist (indicating) it jumps the track.

The theories upon which plaintiff postulates negligence of these defendants are: (a) as to Fields, that the moving

of the conveyor by manpower was a dangerous maneuver and that he was negligent in ordering it to be done and in failing to secure the conveyor proper to the boom while moving it (the latter specification was not charged in the pretrial order); (b) as to Fowler, that as project manager he should not have assigned Fields to the equipment in view of the latter's alleged insufficient training with and knowledge of the proper method of moving it and without instructing him how to do so safely. It is also asserted Fowler had a duty under the statutory safety code, R.S. 34:5-1 et seq. , 34:5-4, 35:5-161, to install safeguards for the operation of the machine, default in which made him liable to one harmed by the breach of duty (the latter claim was not made in the complaint, pretrial order, or at the trial). (c) As to Charles Muscarelle, that he was negligent in failing to inform himself as to the safe use of the conveyor and the competency of Fields to handle it; (d) as to Joseph Muscarelle, that as executive head he should have informed himself as to which employees were proficient in the use of the equipment and seen to the institution of a safety program which would have checked the qualifications and training of subordinates to handle potentially dangerous equipment.


By testimony and depositions introduced in evidence plaintiff submitted proofs which, in their most favorable light to her case, could have supported findings that the activities of the defendants in relation to the work here involved and to each other were as follows:

1. As to Fields. He had been employed by the company about ten years, originally as a laborer, and for about seven to eight years as labor foreman. He had no technical training and less than a grammar school education. He worked only on one particular project at a time, while the company generally had four or five other projects going

on at the same time, as was the case when Garden State Plaza was under construction. But this was the largest project then being executed by the company.

There were four or five supervisors on the Garden State Plaza, each covering a different area. The supervisor in charge of the area in which plaintiff's decedent and Fields were working at the time was one Kinzley, who was not made a defendant. It was Kinzley who had told Fields to work at that part of the building at the time of the accident. Above Kinzley in authority was Charles Muscarelle, as "general superintendent" on the job, and above Muscarelle was Fowler, project manager. The personnel in this "chain of command" were assigned by Fowler.

Fields knew, without being expressly told, that he was to have the conveyor brought to the wall and to erect the ramp so that the conveyor could be brought up within reach of the top of the wall. It was the function of the union shop steward, not of the company supervisors, to approve the construction of the ramp. Fields had executed such maneuvers before. He had used the conveyor many times before, always having moved it from place to place by manpower. No one told him to do it in that or any other way. He was apparently never provided with equipment to move it in any other manner.

Fields was in charge of all common labor on the project. He regarded Fowler as his "boss" and saw him every day, but received no direct orders from him. He also saw Charles Muscarelle on the job from time to time but received no orders or directions from him either. There were from time to time office conferences under Fowler scheduling construction progress for a period of time ahead. Fields said there was a "safety man" on the job but he could not identify him; see discussion as to Joseph Muscarelle, infra.

2. As to Charles Muscarelle. His general status has been described. His function was "expediting and coordinating the work" as a whole, and he was in attendance every day. He knew the conveyor was there but had never seen it

moved. He did not know its size or specifications but knew in a general way how it worked. He had limited technical training, but, at 37, had been engaged in the construction business his entire career.

3. As to Fowler. His general status has been described. He was the senior executive in the field. He described his duties as "primarily from a coordination standpoint, a scheduling and office administrative standpoint." He knew there was a conveyor in use on the project and that it was the only one the company owned. He had no concern with detailed construction operations and did not know that the ramp was built or that the conveyor was to be moved onto it. He knew nothing about the need for the specific fatal maneuver. It might have been a week or two before the accident since he was last at that part of the project. His knowledge of the execution of the job did not extend to specific daily progress.

4. As to Joseph Muscarelle. He never supervises in the field. He produced records which showed the conveyor had been purchased in June 1953. He gives final approval to purchases of larger pieces of equipment. Requests for such equipment go through "the various chain of command." He knew nothing of the history of "this particular piece of equipment" (conveyor). There was no person "that was designated as a safety engineer" on the Garden State Plaza project. This testimony is not fairly understandable without the further explanation given by the witness, omitted in the reading of the depositions for obvious reasons, "none other than what the insurance company furnishes us." Apparently the only trained engineers in the concern were Collins and Burghardt, but they did not supervise in the field. Joseph Muscarelle knew the conveyor was being used on this project and that it had to be moved from place to place, but was not familiar with the fact it might have to be moved to higher levels.


A fair appraisal of the facts requires giving consideration to two categories of evidence offered by plaintiff but excluded by the trial court. The first related to a prior accident with the conveyor, the second to proposed expert testimony.

Plaintiff sought to adduce the testimony (by proffer, although he was not actually sworn) of one Polito, a laborer formerly employed by the company, who, it purportedly would have been shown, was severely injured in July 1954 when this same conveyor collapsed and fell on him at another construction project in the same manner as befell Miller, while it was being pushed by manpower preparatory to mounting a ramp. There, however, the rig had not yet reached the foot of the ramp (so we are now informed by counsel for plaintiff, although a contrary implication appears in counsel's questioning of Fowler on depositions). On objection, the trial court excluded the proof on the sweeping ground that a prior accident may not be shown to prove negligence, citing Debes v. Morganroth , 48 N.J. Super. 39 (App. Div. 1957). Under the same ruling, references in the depositions of Fowler and the Muscarelles as to the existence of knowledge of the prior accident were excluded when they were offered in evidence. These would have shown (we have examined the original transcript) that Fowler was informed of the 1954 accident when it occurred. He was not project manager of that job but was general superintendent of the company when the prior incident took place. He was not apprised of the particulars. He reported the accident to the insurance company (presumably compensation carrier) but not to Joseph Muscarelle. Joseph Muscarelle categorically denied knowledge of any prior accident involving the conveyor. This statement was admitted in evidence without objection. Charles Muscarelle, in deposition testimony excluded at the trial, said he did not "remember" the prior accident and seriously doubted that he ever attended that job site.

Plaintiff sought to adduce the testimony of a business agent of the laborers' union, one Priscoe, who counsel now tells us would have testified, if allowed, that after the prior accident he complained to the foreman and superintendent of that job that the conveyor should have been moved only by a power mechanism. The exclusion of this proof by the trial judge was patently not error, apart from the consideration of its relation to a prior accident, since (a) Priscoe was not an expert and (b) any conversations he had with other employees were not binding upon or chargeable as notice to the present defendants.

Plaintiff attempted to qualify two alleged experts on conveyors so as to elicit opinions that standard practice for the safe movement of such equipment as this was by mechanical power, not manpower. This was to sustain plaintiff's burden of establishing a failure by defendants to conform with a standard of reasonable care in the use of the conveyor. One of these experts, one McCoy, a licensed mechanical engineer, claimed to have had experience in the movement of conveyors of this type, but not more recently than 24 years previously. It appeared, however, that while he had supervised such movements in industry, he had been present only twice when such a movement had taken place. Plaintiff defended his qualifications primarily on the basis of his scientific knowledge. We are satisfied that the rejection of this witness was well within the discretionary judgment of the trial judge under the rule which places the control over such proofs largely within the discretion of the judge. Henningsen v. Bloomfield Motors, Inc. , 32 N.J. 358, 411 (1960); Rempfer v. Deerfield Packing Corp. , 4 N.J. 135, 141 (1950).

The other witness proffered as an expert, one Green, had had 17 years of occupational experience as a rigger, including the handling of precisely such equipment. For ten years or more, moreover, he had had frequent occasion personally to direct and supervise the movement of conveyors like this one from place to place. His testimony was excluded

on the sole ground that his experience with conveyors was not in the construction industry. This does not impress us as a justifiable basis for the disqualification of the witness, insofar as reasonable care in the use of such equipment may have been regarded as an issue in the case. The extensive experience of the man with such equipment was undeniable. Plaintiff was sorely dependent upon such proof. No reason is shown why standards or principles of safety in the movement of conveyors over terrain in one industry should be inapplicable to a similar movement in another industry. Expert testimony is admissible or not accordingly as the witness offered has or has not peculiar knowledge or experience not common to the world, such as would render his opinion founded on such knowledge or experience helpful to the court or jury in determining the questions at issue. Rempfer v. Deerfield Packing Corp., supra (4 N.J. , at pp. 141, 142). See also O'Donnell v. Asplundh Tree Expert Co. , 13 N.J. 319, 340-341 (1953); Keaveney v. Newark Ladder & Bracket Co., Inc. , 23 N.J. Super. 99, 102 (App. Div. 1952). For fact situations comparable to the instant case where such opinions were considered helpful and admissible, see Excelsior Electric Co. v. Sweet , 57 N.J.L. 224, 229-231 (Sup. Ct. 1894), reversed on other grounds, 59 N.J.L. 441 (E. & A. 1896); Schnoor v. Palisades Realty, etc., Co. , 112 N.J.L. 506, 508 (E. & A. 1934); Carver v. Missouri-Kansas-Texas R. Co. , 362 Mo. 897, 245 S.W. 2 d 96, 103 (Sup. Ct. 1952); Consolidated Stone Co. v. Williams , 26 Ind. App. 131, 57 N.E. 558, 559 (App. Ct. 1900); Roberts v. Vroom , 212 Mass. 168, 98 N.E. 687, 688 (Sup. Jud. Ct. 1912); Maxson v. J.I. Case Threshing Mach. Co. , 81 Neb. 546, 116 N.W. 281, 285-286, 16 L.R.A., N.S. , 963 (Sup. Ct. 1908); Hamner v. Janowitz , 131 Iowa 20, 108 N.W. 109, 110 (Sup. Ct. 1906). See also, generally, Annotations 62 A.L.R. 2 d 1426 (1958), 146 A.L.R. 5 (1943).

As will be seen, infra , however, the trial action in with-holding this case from the jury was correct even upon an

assumption of the admission of the opinion of the expert Green. The rejection of this testimony will therefore not require a reversal.

The challenge of the court's exclusion of all proofs of or references to the prior accident raises a type of legal problem which has given our courts and others considerable difficulty. It has recently been stated by this court that "proof of a previous mishap similarly occasioned is not admissible to demonstrate the dangerous nature and character of the condition." Debes v. Morganroth, supra (48 N.J. Super. , at p. 45; emphasis by the court). There the dangerous condition was a door, in a dwelling, opening on cellar stairs, which a guest assumed opened to a bedroom. The rule as there stated is grounded in many prior decisions so holding on the policy basis of avoiding confusion of issues, excessive consumption of time, and inordinate prejudicial effect. Ibid.; Bobbink v. Erie Railroad Co. , 75 N.J.L. 913 (E. & A. 1908); Crouse v. Stacy-Trent Co. , 110 N.J.L. 124 (E. & A. 1933); Vander Groef v. Great Atlantic & Pacific Tea Co. , 32 N.J. Super. 365 (App. Div. 1954). Side by side with the rule stated, however, stands the principle that a prior accident may be proven if calculated to show the subsistence of a specific condition long enough to bespeak notice thereof to the owner or occupant, or to show the fact of actual notice. Alcott v. Public Service Corporation , 78 N.J.L. 482, 486 (E. & A. 1909); Schwartz v. Howard Savings Institution , 117 N.J.L. 180, 183 (E. & A. 1936); Dolan v. Newark Iron & Metal Co. , 18 N.J. Super. 450, 456-457 (App. Div. 1952); cf. Zizi v. Gabriele d'Annunzio Lodge No. 22 , 14 N.J. Super. 200, 203-204 (App. Div. 1951). Proof admissible for the latter purposes may be received with cautionary instructions against using it for the improper purpose. Dolan, supra , 18 N.J. Super. , at p. 456.

Wigmore (2 Evidence (3 rd ed. 1940), § 458, p. 473) and McCormick (Evidence (1954), § 167, p. 350) take the view that since a prior instance of ...

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