Kilkenny, Labrecque and Leonard. The opinion of the court was delivered by Labrecque, J.A.D.
Defendant and third party plaintiff Humble Oil and Refining Company (Humble), successor by merger to Esso Standard Oil Company, appeal from an adverse judgment for $35,000 in favor of plaintiff Steward*fn1 and from denial of its motion for a new trial.
On June 4, 1965 Steward was a welder employed by O.C. Francis Co., Inc., an independent contractor engaged by Humble to lay a six-inch pipe line on its property which bordered on 22nd Street, Bayonne. Humble's property contained four or five acres and was separated from 22nd Street by a steel fence six feet eight inches high. Beyond the fence, defendant and third party defendant Public Service Electric and Gas Company (Public Service) maintained, parallel to the fence and ten feet from it, a line of poles supporting an electric transmission line carrying 15,250 volts. In the area where the accident occurred the wires
hung on crossarms, the nearest wire being six feet beyond the vertical line of the fence and 37 feet from the ground.
The pipe line was intended to carry steam to a new plant. It was being installed inside the fence and three feet away from it. A crane was being used to place the sections of pipe in position on concrete pipe supports 30 inches high, after which the pipes would be fitted and welded together by Steward and his co-workers.
The crane was mounted on a truck, had a 55-foot boom and was positioned approximately 47 feet from the fence at the time of the accident. There was no signalman detailed to work with Bond, the crane operator, and the crane was not grounded. Bond testified that he was familiar with the six-foot clearance requirement of the High Voltage Act, N.J.S.A. 34:6-47.2 and 3 and with Humble's (Esso's) safety regulations which extended this prohibition to ten feet. As required by N.J.S.A. 34:6-47.4 there was a notice posted in the cab of the crane reading, "Warning Unlawful To Operate This Equipment Within 6 Feet of High-Voltage Lines."
The accident occurred as Bond was in the act of picking up a length of pipe to be placed where it was to be welded into the steam line by Steward. In the absence of a signalman, Steward had signaled Bond to pick up the pipe, but it had shifted. He then signaled Bond to swing over and pick it up again. As Bond attempted to do so, the cable on the crane "drifted out" and made contact with the overhead wire causing Steward, who was holding on to the hook at the end of the cable, to sustain a severe electrical shock.
The day of the accident was the first day that Steward had worked in this particular area of Humble's plant. In his pretrial deposition, which was read into the record, he testified he had not noticed the electric wires prior to the accident.
Steward also testified that daily work permits were issued by Humble's engineer to Francis before it started work in an area. These were of two types, "cold permits" and "hot
permits." Usually, before a hot permit was issued Humble's engineer would test for gas fumes and generally check the area. There was evidence that Knight, Humble's engineer, had issued Francis a hot permit on the day Steward was injured, as well as on the two prior days. Francis' foreman, Kutscher, testified that Knight's examination had included the overhead wires. Knight was never called as a witness to contradict this testimony.
Bond admitted that he was "probably familiar" with the fact that Humble's safety regulations provided that "where it is absolutely necessary to operate closer than 10 feet, special permission must be secured from the field engineer and arrangements made to ...