Pfeiffer v. Dialogue , 35 Vroom 707 ( 1900 )

The opinion of the court was delivered by

Vredenburgh, J.

The trial at the Camden Circuit, of this cause, resulted in a direction by that court of an entry of nonsuit, and from the judgment, in the Supreme Court,, thereon, this writ of error is prosecuted. The plaintiff,, having been called as a witness on his own behalf, testified as follows:

. “I was putting bolts in on the side of the,vessel, and I wanted to go around on the other side to work at something-else, and as I -went around on the other side, I slipped and. fell.

“Q. What slipped?

“A. I was about the middle of the plank, and the plank went down.

“ Q. Then the plank slipped and fell from the scaffolding,, and you broke your arm ?

“A. Yes.”

The.suggestive and leading character of this examination-of this interested witness is thus apparent, and casts more-than a doubt upon a point which is vital to the plaintiff’s case. As it stands upon the record it is by no means clear; from the plaintiff’s sworn version of the accident that his fall was not entirely attributable to his own slip or misstep on-the scaffold, and not at all due to the alleged defective construction of the scaffold. But aside from this consideration, and upon the assumption that the plank on which he was-walking slipped before he slipped, because it was not securely fastened or nailed, we think the nonsuit was properly directed. No defect in the materials used for the scaffold appears, nor that the defendant in person took any part in its construction,. but the evidence clearly shows that the platform or scaffold, which was a 'temporary and movable one to be increased in height as the work progressed, was constructed by carpenters who must be regarded, under the evidence, as fellow-workmen with whom the plaintiff was engaged in a common employment, and subject to risks common to all of them. All these workmen, whether iron workers or carpenters, were employed in the common undertaking of constructing the vessel. Even if the platform had been negligently erected .as claimed, the defendant cannot be held responsible in damages under the many firmly-settled adjudications of our courts, among which are Maher v. McGrath, 29 Vroom 469; Olsen v. Nixon, 32 Id. 671, decisions recently approved by this court in Curley v. Hoff, 33 Id. 758. In the cases cited the facts were so closely similar to those of the present case, and the law applicable to those facts was so fully examined and expounded that, it seems to me, to extend this opinion further would be a repetition serving no useful purpose. The plaintiff’s counsel, in his brief, seems to rely upon the case of Cole v. Warren Manufacturing Co., reported in 34 Id. 626, decided by this court in November, 1899. In that case a permanent scaffold, on which the plaintiff, who was a millwright in the employ of defendant, had been accustomed to walk, in the performance of his duties, was deprived of its usual support, at one end of it, in the course of the partial reconstruction of the mill, by an architect and builder who had been employed by the owner for that purpose. The plaintiff in that case had a right to rely upon the previously safe support given to the scaffold by the hanger in its ordinary condition. The act of the owner, through his builder, in taking away this support and leaving the scaffold insufficiently sustained to carry the weight of the plaintiff, was an .act from which negligence was properly inferable, and was not the act of a co-servant. This case has no analogy to the •present.

The judgment should be affirmed.

' For affirmance—Magie (Chancellor), Depue (Chief Justice), Van Syckel, Dixon, Lippincott, Gummere, Ludlow, Bogert, Hendrickson, Adams, Vredenburgh.11.

For reversal—None.