Kilkenny, Carton and Horn. Horn, J.s.c. (temporarily assigned).
[98 NJSuper Page 369] Plaintiff, administratrix ad prosequendum of the estate of Verges N. Black, appeals from an involuntary dismissal of her action after the completion of her case. The trial judge granted said motion upon his finding that upon the facts and the law plaintiff had shown no right to relief. R.R. 4:42-2(b).
Plaintiff sought damages under the Wrongful Death Act, N.J.S. 2 A:31-1 et seq., alleging that her intestate, Verges N. Black (Black), met his death as a result of defendant's negligence on March 18, 1965. His death admittedly came about when a crane with which he was working came in contact with a high voltage line.
Black had been employed as a laborer for some years before his death by Central Construction Co. (Central), a general contractor. At the time of the accident, and for about six or seven weeks before, Central had been engaged in installing sewage pipe underground for the City of Rahway.
The accident occurred close by a wooden pole bearing high voltage lines owned and maintained by defendant on the east side of Route 1 at approximately its intersection with Lincoln Avenue. Lincoln Avenue was laid out on the municipal map but was not as yet open to traffic.
Route 1 is a main artery of traffic containing three lanes on each side of an elevated medial strip. For a long time defendant had maintained a line of poles bearing high voltage lines along the westerly side thereof. A line led from one of these poles on the west side directly across the highway to the aforementioned pole on the east side close to where the accident occurred. The pole on the west side was partially supported by guy wires anchored in the ground.
Central's equipment and approximately 15 to 20 of its men had been working on the west side of Route 1 from about the end of January 1965 or early February 1965 to March 18, 1965. The equipment included a bulldozer, a back hoe and a large crane with a boom that extended a distance higher than the lines strung on the poles. Before March 18 Central's crew had excavated a pit on each side of the highway at Lincoln Avenue, respectively 10 to 15 feet deep, about 20 feet long and about 8 feet wide. A subcontractor then dug a tunnel beneath the highway between the two pits and placed the excavated material in them.
The crane had been in the area of the tunnel on the west side of Route 1 for a "couple of weeks" before the date of the accident, March 18, 1965. Sometime before March 18 defendant, at the request of Central, had moved a guy wire attached to the above-mentioned pole on the west side of Route 1 because it interfered with the work that was being done.
About one-half hour before the accident the operator had moved the crane to the east side close to the place of the accident. The crane operator with his crew, consisting of Black and another employee, Michael Podolsky, were engaged in lining up pipes and rails preparatory to installation in the tunnel. Black and Podolsky hooked up a section of pipe to the cable attached to the boom. The crane was raising it when apparently some part of the boom or cable touched one of the high voltage lines. Black died as a result.
Plaintiff's primary theory of liability was that defendant had knowledge of the work being performed in the vicinity of its high voltage lines and negligently failed to take any precautions to protect against injury to the workmen. She also advanced a theory based on alleged failure to comply with the provisions of the National Electric Safety Code with respect to warning signs and inspection and maintenance of the high voltage wires.
The trial judge dismissed the action at the conclusion of plaintiff's case in reliance upon his conception of the holding in Manning v. Public Service Elec. & Gas Co., 58 N.J. Super. 386 (App. Div. 1959). He found "that the defendant utility company had no knowledge that work was being performed in the immediate vicinity of the high-tension wire until after the accident occurred." He further held there was no proof of a violation of the National Electric Safety Code, notwithstanding the expert opinion of one ...