52 N.J.L. 253 | N.J. | 1890
'The opinion of the court was delivered by
The wall that fell and injured the plaintiff had been built by the defendant, and, as the jury has found, had been left by him in a dangerous condition. Being conscious of that fact, he had directed one of his men to prop it up in the usual manner—an order that had not been adequately obeyed, and hence the accident.
The verdict acquits the plaintiff of all negligence on his part.
The only connection between the plaintiff and defendant was, that they were engaged in doing work on the same structure, by force of independent contracts with the builder, ■the defendant having undertaken to do the mason work and
A single question of law was started at the trial.
It was insisted that there was some evidence from which •the jury could have properly inferred that one Bechtel, who was a co-employe with the plaintiff, and who had been directed •to oversee that particular job, had received an intimation from ■one of the employes of the defendant that should have put him on his guard, with respect to the dangerous condition of the building. It will be assumed, for the present, that this intimation was such that by its force Bechtel was chargeable with knowledge of the danger, and that, without apprising the plaintiff of the fact, he led him into the peril that so disastrously resulted.
At the trial, the presiding judge charged the jury that, even if the apprentice was the overseer of the job, that his knowledge of the lurking danger was not to be imputed to the plaintiff, and that to disentitle the plaintiff to a recovery it should appear that he himself knew, or from the circumstances .should have known, of the impending peril.
This statement of the law is now challenged in this court.
But it is conceived that the rule thus declared at the trial was correct.
The legal situation was this: The defendant had erected this wall, and, therefore, the law imposed on him the duty to put it in a safe condition, or to give warning of its unsafe condition, and this was a duty he owed to each individual .person who should lawfully come upon the premises. Being aware of such responsibility, he directed one of his men to make the work safe; but, instead of doing this, the latter, as it is claimed, warned Bechtel, the co-employe of the plaintiff and •the foreman of the work for the time, being, of the danger'. But how is it that the plaintiff is to be affected by such a notice which it is not pretended was communicated to him.
ISTo trace of the doctrine thus claimed is to be found in the books; a circumstance that appears to be unexplainable, on the supposition that it is possessed of any substantial basis, as it is obvious the doctrine would apply with decisive force to many of the cases wherein a workman, in the course of his employment, receives a hurt from the negligence of strangers. Uo adjudication has been referred to, nor has any been discovered, that indicates that the workman, under the circumstances in question, is not entitled to decide for himself whether or not he will encounter these perils or avoid them.
But if we reject altogether this notion of an agency of this kind proceeding from the workman, this subject becomes readily adjustable by the application of the ordinary rules of law. This is, then, the legal posture of affairs: The erector of the nuisance must give warning of its existence; he can perform this duty either personally, or by one of his own servants, or, as is often the course adopted, through the medium of the foreman of a body of men who are entitled to be warned. Practically either of such methods is safe, as, in the main, every person having a right to notice of the danger receives it; but in case of a miscarriage by reason of the neglect of the foreman, who is to abide the consequences? Assuredly it is he whose duty the negligent foreman failed to fulfill. In the present instance the defendant was bound to give the notice in question to the plaintiff; he attempted to convey it through a co-employe of the plaintiff, and thereby such co-employe became the agent, pro hao vice, of the defendant, and, in no sense, the agent of the plaintiff. This would seem to be the plain legal result, and it appears to be a consequence that is accordant with justice and public policy. The law should relax none of its strictness in favor of him who, by his rashness or negligence, has placed an innocent person in peril. The wisdom of this course is strikingly exemplified by the facts of the present case. The agent of the defendant, as he claims, gave notice to the foreman, being a co-employe of the plaintiff,
The rule of law regulating the trial was correct.
But if this were otherwise, still, this rule should not be made absolute, as there is no evidence in the case that would support a verdict founded on the idea that a warning of danger was given even to Bechtel.
There are but two of the defendant’s witnesses who testified on this subject. One of these was the foreman of the defendant, who had been left with instructions to jmt the wall in order. This witness said: “ Then I went back to put up the first brace, and when I got that first brace up then they were coming in with the derrick ; and I went to him [Bechtpl] and said that ‘You don’t need to bring that in here; there is Mr. Prior’s derrick that you can use, and you will interfere.’ ” The second witness testified to the same effect, saying: “ Mr. Merrick [the defendant’s foreman, being the former witness], came down there and said to these gentlemen, ‘ I don’t see why you want to bring that in; here is a derrick standing; you can use that.’ ”
This statement, such as it is, was denied to be true by the plaintiff and his associates, and the jury have found that the appearance of things at the place in question was not such as to put the plaintiff on his guard.
It seems obvious, therefore, that from such premises as these the jury would not have been warranted to find that a warning of danger had been given either to the plaintiff or to any of his co-employes. Accepting the testimony of the defendant’s witnesses as wholly true, there is nothing proved in the way of showing that the plaintiff or his associates received even the faintest suggestion that they should not
The rule should be discharged.