70 N.J.L. 771 | N.J. | 1904
The opinion of the court was delivered by
For a year or more prior to the month of January, 1902, the defendant corporation had been engaged in building new piers and wharves upon the Hudson river, at
The present action was brought to recover the damages thus sustained. At the trial the plaintiffs introduced evidence showing, or tending to show, the above state of facts, whereupon the learned trial justice, at the instance of the defendant, ordered a judgment of nonsuit. The assignments of error relate solely to the propriety of that ruling.
This brings us to the question whether there was evidence of negligence on the part of the defendant in selecting as a berth for the scow the place at which it was moored by the tugboat captain.
The case is devoid of evidence to show any notice to the def endant of the existence of the submerged pile. The place had' been recently dredged in a manner to give reasonable assurance that it was clear of such obstructions. Counsel for the plaintiffs argues that the defendant’s contract of employment under the North German Lloyd Steamship Company obligated the defendant to remove all old piles from the wharves. This does not clearly appear; but supposing that it did, the plaintiffs were not parties to that contract and cannot maintain an action of tort in respect to the breach of a duty that arose solely from its provisions. Styles v. F. R. Long Co., 38 Vroom 413; 41 Id. 301, and cases therein cited. There was nothing in the situation that arose out of the contract to impose upon the defendant, independent of its pro-
No circumstances appeared to show the defendant was wanting in ordinary care in selecting a berth for the scow, and so the trial justice correctly ordered a nonsuit.
The judgment under review should be affirmed.