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McComish v. Desoi

Decided: May 4, 1964.

LAVINA MAE MCCOMISH, ADMINISTRATRIX AD PROSEQUENDUM OF THE ESTATE OF ROBERT G. MCCOMISH, DECEASED, PLAINTIFF-APPELLANT,
v.
HARRY L. DESOI, ET AL., DEFENDANTS, AND BRENNAN COMPANY, INC., ETC., DEFENDANT-RESPONDENT, AND BELOIT IRON WORKS, ETC., DEFENDANT-RESPONDENT AND CROSS-APPELLANT. ROBERT R. TOMAN, PLAINTIFF-APPELLANT, V. HARRY L. DESOI, ET AL., DEFENDANTS, AND BRENNAN COMPANY, INC., ETC., DEFENDANT-RESPONDENT, AND BELOIT IRON WORKS, ETC., DEFENDANT-RESPONDENT AND CROSS-APPELLANT



Affirmed in part and reversed in part -- Chief Justice Weintraub, and Justices Jacobs, Francis, Proctor, Hall, Schettino and Haneman. Opposed -- None. The opinion of the court was delivered by Francis, J.

Francis

[42 NJ Page 276] This is a negligence action arising out of an industrial accident which occurred June 22, 1958 on premises of the Whippany Paper Board Company (Whippany) at Whippany, New Jersey. The mishap resulted in the death of

Robert McComish and personal injuries to Robert Toman. Both men were employees of Whippany.

Beloit Iron Works built a huge paper-making machine for Whippany under contract. The machine, built at the Beloit plant in Wisconsin, was approximately 700 feet long and two stories high. After construction it was match-marked, disassembled and shipped to Whippany for reassembly and installation. Beloit provided its engineers at the Whippany plant during the operation there. Whippany contracted with Brennan Company, Inc., a rigger, to install the machine. Among other things the agreement provided:

"This contractor will be subordinate to the manufacturer's supervisors in all matters concerning method of assembly, preparation of components, alignment, and all else pertaining to the proper installation of the machinery."

An integral part of the mechanism was a portable wire screen, weighing approximately a ton, which had to be moved from one section of the machine to another during the papermaking process. As originally designed by Beloit, the screen was to be shifted by a wire carriage which would be raised and lowered by means of two vertical wire cables. A construction feature of the building made use of this device impossible. Thereupon, a Beloit engineer designed an "A" sling to accomplish the purpose. The top of the A sling was a steel ring about 8 inches in diameter which was to be placed on an overhead crane hook. The sides of the A were of wire cable 8 feet long attached to a horizontal spreader bar ("strong back"), a steel "I beam" about 22 feet long. The cables were attached about 4 feet from the ends of the strong back, the ends of the cable being secured by two Crosby clips.

Testimony disclosed that the sketch was given to two Whippany structural iron workers who constructed the A sling under the supervision of a Beloit engineer. In doing so, by mistake, they used 5/8 inch cable for the sides instead of 3/4 inch. Then in securing each end of the cable they used two 3/4 inch Crosby clamps.

On the day of the accident the wire carriage was being moved by means of the A sling and crane when one side of the wire cable slipped out of the 3/4 inch Crosby clamps causing the assembly to collapse and the carriage to fall, killing McComish and injuring Toman.

Suit for damages was brought against Beloit, Brennan and several employees of Whippany by Lavina Mae McComish, administratrix ad prosequendum of Robert A. McComish, and by Toman. Trial resulted in judgments for the administratrix in the amount of $160,000 and for Toman of $16,500. The action against the Whippany employees was dismissed by the trial court.

Defendants appealed to the Appellate Division alleging a number of trial errors. Primarily, they raised issues as to the sufficiency of plaintiffs' proof of negligence on the part of the defendants, admissibility of certain manuals relating to the safety standards said to be applicable to the construction of the type A sling involved here, propriety of the charge to the jury as to Brennan, and whether the McComish verdict was excessive. The Appellate Division concluded the evidence of Brennan's alleged negligence was inadequate to justify sending the issue to the jury for determination, and that Brennan's motion to dismiss at the close of plaintiffs' case, and for judgment at the end of the entire case, should have been granted. Consequently, the judgment against Brennan was reversed. With respect to Beloit, however, the court held that the evidence of negligence was sufficient to require submission of the issue to the jury for decision. It decided also that the McComish verdict was not excessive. But it held the safety manuals or codes should not have been received in evidence, and that the error was so prejudicial as to require a new trial as to defendant Beloit. Plaintiffs and defendant Beloit cross-petitioned for certification. We granted both petitions. 41 N.J. 122 (1963).

Our study of the record satisfies us that the Appellate Division was correct in reversing the judgment against Brennan, in sustaining the trial court in sending the question of Beloit's

negligence to the jury, and in holding the McComish verdict not to be excessive. On those aspects of the appeal we affirm substantially for the reasons expressed in its opinion. 83 N.J. Super. 505, 200 A. 2 d 511 (App. Div. 1963). For reasons to be stated, however, we cannot agree that the trial court erred in admitting the safety codes.

Plaintiffs called one Isaac Stewart, a consulting engineer of this State as an expert witness. His testimony revealed considerable educational and practical experience as a metallurgical and physical test engineer. His training had included study and experience in testing and inspecting wire cable, cable clamps and in the construction or assembly of wire rope slings. No challenge was interposed at the trial to his qualifications to advance an expert opinion in the field covered by his testimony.

Some time after the accident Stewart examined and studied the A sling at the Hanover Township Police Headquarters where it had been taken. From this study he concluded, and so testified, that the use of 3/4 inch Crosby clips to secure 5/8 inch wire cable in the A sling assembly was improper, dangerous and a deviation from generally accepted safety practices in the industry. Further he said that not only were the clips over-sized, but they were improperly spaced on the cable, and an insufficient number had been used. In his opinion, under accepted safety practice in the industry, at least three proper sized clips were required and they should have been spaced on the cable a distance represented by six times the diameter of the cable.

On direct examination of Stewart additional inquiry was made as to whether there were any "standards in the trade and safe practice standards" or "standard and safe practices." He replied that there were, and mentioned the following recognized manuals or codes specifying standard or prevailing safety practices in the field under discussion: American Tiger Brand Wire Rope, United ...


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