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Marion v. Public Service Electric & Gas Co.

Decided: February 2, 1962.


Goldmann, Foley and Lewis. The opinion of the court was delivered by Lewis, J.A.D.


Plaintiffs appeal from an order granting defendant's motion for involuntary dismissal at the close of plaintiffs' case. R.R. 4:42-2(b). In reviewing the correctness of that determination, we must accept as true the evidence adduced at the trial, and give to plaintiffs the benefit of all legitimate inferences to be drawn therefrom. Melone v. Jersey Central Power & Light Co. , 18 N.J. 163, 170 (1955); J.L. Querner, etc., Inc. v. Safeway Truck Lines, Inc. , 35 N.J. 564, 566 (1961). See also Kopec v. Kakowski , 34 N.J. 243, 244 (1961).

Defendant and the United Engineers and Constructors, Inc. (hereinafter United), had contracted for certain construction work to be performed by United in the erection of the Bergen Generating Station in Ridgefield, New Jersey. The testimony revealed that on October 2, 1957 Michael Marion, John Ferrara and Raymond Alexander, all of whom were boilermakers with considerable experience, were employed by United. On that day, these employees reported for work in the morning. Flanagan, United's general foreman on the job, selected Murphy, another United employee, as "pusher" or foreman of the crew; the men were then ordered to a nearby railroad siding to unload some heavy equipment from flat cars. When the crew arrived at the siding Ferrara noticed a man wearing a yellow helmet with a Public Service emblem on it standing near the freight cars about to be unloaded. He testified he had never seen this man on the job-site prior to that time. Murphy told the men to remove from one of the cars the two halves of a "rotor" -- parts of an air preheater assembly. This they proceeded to do with the assistance of a caterpillar crane which bore a Public Service symbol. Ferrara and Alexander observed Murphy and the man wearing a helmet talking together and pointing in the direction of the railroad cars. Neither Ferrara nor Alexander heard what was said.

After the rotor had been unloaded, the crew went to a nearby gondola car in order to remove metal plates or

sheets, each weighing approximately three or four tons; they were fabricated sections of the preheater system. These parts were stacked upright in the car, in bundles consisting of eight sections. The bundles were bound together at the top by two metal straps (six inches wide and 3/8 of an inch thick), which were connected, in turn, to the sides of the gondola car by 3/4-inch steel rods welded to the straps on the one end and the sides of the car at the other. They were also held in position by means of wires and wooden wedges. Murphy instructed his men to unload; they used the crane in connection with this project.

Ferrara and Alexander climbed atop the preheater plates to make the necessary hookup with the crane, and started to cut through the metal bindings with an acetylene torch. The straps were not completely severed until the plates had been connected with a bridle and shackle to enable the crane operator to lift them free from the train for deposit on the ground. Alexander stated that he saw several men wearing yellow helmets talking with Murphy during the time that three sections were being successfully transferred. While Alexander was preparing for the removal of the next plate, another member of the crew suddenly yelled a warning that the bundle was starting to spring. Ferrara jumped to safety, and Alexander made an effort to escape impending danger by sliding down and, in doing so, fell to the floor. His right foot was pinned and crushed underneath one of the plates that shifted to a leaning position against the side of the car. He was immediately removed to the hospital. In the ensuing commotion, several men came running to the railroad siding, including, according to Ferrara, a couple of other "Public Service men." Ferrara observed these men talking with Murphy, and pointing toward the car. After five or ten minutes of apparent conversation, none of which Ferrara actually heard, Murphy came over to the crew and told Marion and Ferrara to continue unloading. As the last two plates were being equipped for removal, they fell over the side of the car -- "the whole thing just toppled

over and buried us [Marion and Ferrara] right into the ground." Marion was killed instantly, and Ferrara sustained severe injuries.

The instant proceedings were commenced in the Superior Court, Law Division, by Margaret Marion, the administratrix ad prosequendum of Michael Marion's estate, and by Ferrara and Alexander. Plaintiffs also presented claims to the Workmen's Compensation Division, and they have a suit pending against the "Air Preheater in New York and the railroad in New York." The contention on this appeal is that the trial court erred in excluding certain evidence, and in granting defendant's motion for an involuntary dismissal. It is pertinent that we examine the relationship between United and the defendant in order to ascertain the existence of any legal duty owing by defendant to plaintiffs -- a sine qua non to the imposition of liability for damages.

The general rule applicable to situations similar to the one sub judice was recently set forth in Wolczak v. National Electric Products Corp. , 66 N.J. Super. 64, 71 (App. Div. 1961):

"Absent control over the job location or direction of the manner in which the delegated tasks are carried out, the general contractor is not liable for injuries to employees of the subcontractor resulting from either the condition of the premises or the manner in which the work is performed. * * * Nor is his immunity disturbed by the exercise of merely such general superintendence as is necessary to insure that the subcontractor performs his agreement. * * * Of course, specific instances of direct interference which proximately cause injury to the employees of the subcontractor -- such as the furnishing of defective materials * * * or the giving of a single authorized direction thwarting the subcontractor's effort to provide safeguards * * * -- will heap liability upon the shoulders of the general contractor." (Citations omitted)

The same principle of law obtains when the relationship is that of owner and employees of an independent contractor. Plaintiffs maintain that Public Service (1) reserved in its contract with United the power to exercise direction and control over the employees of ...

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