77 N.J.L. 236 | N.J. | 1909
The opinion of the court was delivered by
This action was brought by the administratrix of Michael Fritz to recover for his death. He lost his life through the falling of a brick kiln which he and other employes were engaged in constructing for the defendant company. The kiln upon which he was engaged at the time it collapsed was a rectangular structure of brick ninety-six feet long by twenty-five feet wide. The side walls were about eight feet high and were surmounted by a, crown or arch making an additional height of eight and one-half feet to the highest part of the arch. The mason’s gang, of which Fritz was a member, was erecting the arch over half of the length of ninety-six feet, and had completed it with the exception of eight or ten keys, which remained to be placed at the top. Fritz and his fellow-workmen were engaged in putting in these remaining keys, when the entire crown collapsed, leaving the side walls standing.
In each of the side walls of the kiln, every six feet throughout their entire length, were built eight-inch I beams in pairs, three inches apart, which projected above the top of
The trial resulted in a verdict for $5,800 in favor of the plaintiff.
Numerous reasons are assigned on the part of the defendant for the setting aside of this verdict. Only one of them, however, requires consideration at this time, and that is that “the verdict is contrary to the judge’s charge.” Among other matters contained in the charge was the following instruction, delivered at the request of defendant’s counsel: “If the defendant supplied tie-rods sufficient for the purpose, it is not responsible for the failure to use them before building the crown.” The soundness of this instruction, as a legal proposition, is not open to us for consideration, for the verdict can only be sustained on the assumption that it- is a correct exposition of the law of the case. It is entirely settled that a verdict cannot be supported upon a theory of the law contrary to that on which the case was submitted to the jury. Hays v. Pennsylvania Railroad Co., 13 Vroom 446; Marts v. Cumberland Insurance Co., 15 Id. 478; Halsey v. Lehigh Valley Railroad Co., 16 Id. 26; Sensfelder v. Stokes, 40 Id. 86; Oakley v. Emmons, 44 Id. 206. The finding of the jury in favor of the plaintiff, therefore, must be accepted as determining that the defendant company failed to supply tie-rods sufficient in number to lock the various I beams which had been built into the walls. Will the proofs submitted to them support such a finding ?
On the part of the plaintiff two witnesses were examined
“Direct examination.
“Q. Before the kiln went down were there any tie-rods anywhere around that work, or this kiln, except these three ?
“A. I couldn’t see it, only these three.
“Q. Were there any around that work at all where you were at this kiln?
“A. No, not around the kiln.
“Cross-examination.
"Q. What do you mean by ‘around the work?’
“A. I mean all around the place.
“Q. In what place?
“A. Where we were working.
“Q. How far away do you mean?
“A. About fifty feet away—or ten or twenty feet—on one side it was about twenty feet and on the other side it was about seven feet.
“0. That is all you know—it was not within that space?
“A. No.”
On the part of the defendant three witnesses, Peterson, who was in charge of the mason work, including the setting of the I beams and the placing of the tie-rods; Lund, the foreman in charge of the carpenter work, and McCarthy, the designer of the kiln, testified that tie-rods had been supplied for use in locking the I beams, and that they were stored in a shed about fifty to seventy-five feet from the kiln, at the time the accident occurred. In addition to the proof by these witnesses, Mr. Fisher, the general manager of the de
The rule to show cause will be made absolute.