DeVicenzo v. John Sommer Faucet Co.
94 A. 573
N.J.
1915
Check Treatment

The opinion of the court was delivered by

Minturn, J.

The plaintiff, nineteen years of age, was injured by the falling of the roof of a shed, erected wherе he was working, for a contractor, La Conti, who had contracted with defendant to excavаte a cellar under the shed.

The shed was constructed between two buildings, the north and south ends being oрen, and the east and west being closed by the walls of adjoining buildings. The defendant undertook to shore uр the shed during the performance of the work of excavation by La Conti. There were five pоles supporting the shed which was about fifteen feet high from the bottom of the cellar where La Conti’s men were digging-.

On the day in question defendant’s men placed one pole in the ‍​‌‌‌‌‌​‌‌​​‌​‌​‌​​​‌‌‌‌​‌​‌‌​‌‌​​‌‌​​‌​​​‌‌‌‌‌​‌‍front part of the еxcavation, and a carpenter employed *646by defendant endeavored to straighten оut this pole by striking it at the bottom with a large hammer. The posts were being continually changed by the defendant’s men to meet the necessities of the excavation. About twenty minutes before the accident happened the last pole was put in about eight or nine feet distant from where La Conti’s mеn were digging. There is no testimony in the record to show that La Conti’s men came in contact with, or in any manner interfered with, the post, so as to cause it to fall; and no explicit or definite explanаtion appears in the record as to the cause of its fall.

It is inferable from what appears that the defendant’s men so negligently placed the posts, or so indifferently dealt with one or аll of them as to canse the support of the roof to weaken and cause the shed to fall. That some agency caused it to fall seems perfectly apparent; whether in the first instance it was due to defective construction, or later to negligent care, supervision and maintenance, was a matter of legitimate inference by the jury from the proven facts. Tt was also fоr them to determine from all the facts in evidence whether anything which La Conti’s men did on the ground opеrated as a contributing cause to disturb tlie posts or weaken their support arid thereby causе the accident.

These considerations, however, presented a jury question, and the.motion tо nonsuit ‍​‌‌‌‌‌​‌‌​​‌​‌​‌​​​‌‌‌‌​‌​‌‌​‌‌​​‌‌​​‌​​​‌‌‌‌‌​‌‍as well as the motion to direct a verdict were therefore properly refused. Dickinson v. Erie Railroad, 85 N. J. L. 586; Clark v. Public Service Electric Co., 86 Id. 144; Soriero v. Pennsylvania Railroad, Id. 642.

The case at bar is not in its essential facts unlike that of Sheridan v. Foley, 58 N. J. L. 230, where a brick fell from a scaffold where the сontractor was building a wall, and struck the workman of the plumber working upon the same building in the cellar. In bis opinion the present Chief Justice there stated: “The bricks were in the custody of the defendant’s servаnts at the time when this one fell, and it was their duty to so handle them as not to endanger others who were еngaged in other work upon the same promises. This *647brick could not lmve fallen of itself, and the fact that it fell in the absence ‍​‌‌‌‌‌​‌‌​​‌​‌​‌​​​‌‌‌‌​‌​‌‌​‌‌​​‌‌​​‌​​​‌‌‌‌‌​‌‍of explanation by the defendant, raises a presumption of negligenсe.”

"Phis view of the legal rule applicable to the case leads us, to conclude that thе refusal of the learned trial court to charge the request of the defendant was proper since the charge as an entirety properly presented the case to the jury, and the trial court quite manifestly could not properly select a disjointed fact or situation in the casе as a basis for a legal proposition which would he determinative of the rights of the parties tо the litigation. State v. Zdanowicz, 69 N. J. L. 619; Sutton v. Bell, 79 Id. 507; Fernetti v. West Jersey, &c., R. R. Co., ante p. 268.

It is finally urged that there, was error in allowing, over objection, a question to ho. put to the defendant’s physician by the plaintiff’s counsel, for the purpose of showing his interest in the litigation, as follows:

“Q. You are employed regularly as the physician of one or ‍​‌‌‌‌‌​‌‌​​‌​‌​‌​​​‌‌‌‌​‌​‌‌​‌‌​​‌‌​​‌​​​‌‌‌‌‌​‌‍more indemnity insurance cоmpanies, are you not?
“J. I am an employe of one accident insurance company.'’

Questions of like import followed, such as “How did.you come to examine the plaintiff?” To which the witness answeied, “At the direction of Mr. Shale.” “Q. Who is Mr. Shale?" ¿te.

These questions were' put upon the cross-examination of the witness, who had been previously examined in chief as to hH physical examination of the plaintiff, and the result thereof. The questions were therefore proper undеr the well settled rule of evidence which concedes to the opposing party the light of сioss-exainination for the puipose of showing the interest of a witness in the subject-matter of the litigаtion. 1 Greenl. Evid. 450; 10 Cyc. 2677 and cases.

The admission of cross-examination of this character has been repeatedly held by this сourt to be in the sound discretion of the trial court; and where ‍​‌‌‌‌‌​‌‌​​‌​‌​‌​​​‌‌‌‌​‌​‌‌​‌‌​​‌‌​​‌​​​‌‌‌‌‌​‌‍it is not manifest that injmy may have been donе to the rights of the objecting party by its admission, the action of the trial court will not be dls*648turbed. Bradley v. Cleary Co., 86 N. J. L. 338; Lachenauer v. Lyons & Sons Co., 67 Id. 677; Day v. Donohue, 62 Id. 380.

In this instance we think the admission of this testimony was not improper, under the rule of evidence adverted to, and it is manifest thаt its admission has not prejudiced the defendant.

Finding no error in the record the judgment will be affirmed.

For affirmance—Tub Chancellor, Chief Justice, Garrison, Swayze, Trexctiard, "Parker, Bergen, Minturn, ICalisoii, Black, Yredenburgh, White, Teehune, Williams, JJ. 14.

For reversal—Xone.