39 N.J.L. 117 | N.J. | 1876
The opinion of the court was delivered by
This action is brought to recover damages alleged to have been sustained by the death of plaintiff’s intestate, caused by the carelessness and neglect of the defendant. The deceased, at the time he was killed, was in the defendant’s employ as a workman engaged in excavating; a tunnel for a railroad through Bergen hill. The exact charge of negligence is, that the defendant failed to provide proper means whereby the laborers and workmen in his employ, of whom the deceased was one, could be safely and securely let down from the surface of the ground through shafts, into the tunnel, where the work of excavation was going on.
On the trial at the circuit, the defendant gave evidence tending to show that he had supplied all the appliances necessary for the safety of the workmen engaged in making the excavation, and had directed their use by subordinates whose competency was not questioned.
The court, in reference to this ground of defence, charged the jury, in substance, that it was the duty of the defendant, personally, to deliver at the shafts the appliances in question, or to see that it was done, and that if he deputed this duty to an agent or servant, who failed to perform it, and thereby injury ensued to an employé, the defendant would be liable to an action for the damages. This legal proposition seems to be based on the doctrine that where the principal withdraws from the management of the work, he is-
Applying them to the case in hand, the instruction given to the jury .in the particular under consideration, appears, to be inaccurate. The deceased was a fellow-servant of him by whose negligence the injury was alleged to have been caused. They were engaged, at the time deceased was killed, in a common employment, as well because both were employés, of defendant in the construction of the tunnel, as because the presumption fairly arises that the deceased.made his contract of service in view of the risk to which he might be subjected by the negligence of his fellowrservants. The risks which the deceased assumed, embraced not only those arising from the negligence of fellow-servants engaged in the same kind of work, but those which might arise from the negligence of servants or employes of defendant .whose labors, in or on the surface of the tunnel tended to-the construction: of the work. The laborer whose duty, it was to deliver on the surface at the shafts, or there use or keep in repair the instrumentalities provided by the defendant for the safe conduct of the laborers to and from the tunnel, was, in the view of the law, a fellow-servant of the deceased, whose place of labor was in the tunnel, and they were engaged in a common; employment.
There having been error in the charge.of the court..to the jury on the point above stated, and exception duly taken for
For affirmance—None.
For reversal—The Chancellor, Chief Justice, Dal-, rimple, Depue, Dixon, Reed, Scudder, Van Syckel, Woodhull, Clement, Dodd, Green, Lilly, Wales. 14.