72 N.J.L. 254 | N.J. | 1905
The opinion of the court was delivered by
Fukare recovered a judgment for damages for personal injuries against Kerbaugh. Kerbaugh brings a writ of error.
The evidence of an expert, who testified from knowledge and information derived after the accident, that if the supporting timbers had been placed closer together the platform could not have broken, can have no force against the evidence that the platform which collapsed had been constructed upon a plan and with like materials used for a long time without accident.
It is in evidence in the case that one McDonald, a carpenter employed by the defendant in the construction of the trestle work of this embankment, put in the scaffolding at the' commencement; that he made it of the materials there provided and of. the same plan as previously used on the works. There is nothing in the evidence to show that McDonald, as to the platform that fell, was the agent of the defendant to provide a safe place for the men to work, or that he was other than a fellow workman with the plaintiff, and he expressly testified that generally the dump men put up the scaffold themselves, and that upon this work, when the part of the embankment where the scaffold was first erected was filled up, the men themselves constructed the scaffold afterwards from the timber supplied by the defendant.
The rule of liability under circumstances similar to the above is established in the cases of Olsen v. Nixon, 32 Vroom 671, and Pfeiffer v. Dialogue, 35 Id. 707.
The judgment below is reversed.