Loid v. J. S. Rogers Co.

The opinion of the court was delivered by

Black, J.

This is the third trial of this case, reviews of the two former trials in this court, are reported in Loid v. Rogers Co., 68 N. J. L. 713; Loid v. Rogers Co., 77 Id. 784.

Under the law of the case derived from those opinions, the pole ground on which the defendant as master can be held is for a structural defect in the derrick. The alleged structural defect in the derrick is the fact that the projecting nails to prevent the plank from slipping, which held the feet of the derrick, were absent.

The plaintiff, as the administrator of 'William TT. Loid, piued the defendant company to recover damages for cansing the death of William IT. Loid, alleging negligence of the defendant company. The testimony shows that some men were engaged in the use of a derrick that was leaning over beyond a perpendicular position, as the men were straightening it, for some reason or other, the foot of the derrick slipped, the upper portion of the derrick went down and carried with it one of the guy ropes, which in turn caught the deceased and carried him over the side of the building, by which he was killed.

At the first trial Rogers (now dead) testified for the defence that the plank, on which the feet of the derrick rested, was a part of the derrick itself, for holding it in place, the nails, forty penny nails, a dozen or so, ran through the plank or so projected an inch beyond the bottom of the plank, to prevent the plank from slipping. The fact of the nails being there was denied, but the testimony was consistent with their having been there and that the defendant recognized that they ought to be there to keep the foot of the derrick from slipping. This court, in the above case, in Loid v. Rogers Co., 68 N. J. L. 713, held that this raised a jury question, but reversed the judgment, because tire defendants request as to obvious risks was denied; at the second trial, that reported in Loid v. Rogers Co., 77 Id. 784, Rogers was not a witness; at the third trial, resulting in the judgment, now under review, Rogers testimony was read to the jury. The only question, therefore, is whether there was a jury question. We think there was. This question was sharply presented to the jury by the trial judge, when he said, “Now it is only in the event that you find there was an undertaking on the part of Rogers to supply these nails, and that there was a failure in that regard, that any negligence is established in the defendant.” In our reports there are a number of cases illustrating the master’s liability for injuries to servants caused by structural defects in appliances furnished by the master to his servants (4 N. J. Dig. 8266 et seq.); in other courts there are also many cases. 26 Cyc. 1097 B; 4 Thomp. Neg., ¶ 3986 et seq., ¶ 3760; 18 R. C. L., ¶ 188; 1 Sher. & Redf. Neg., ¶ 194 et seq. (6th ed.).

The rule is thus stated, that if the master knows or would have known if he had used ordinary care to ascertain the facts, that the appliance or materials which he provides for the use of his servants are unsafe or structurally defective, and ia servant without, contributory fault, suffers injury thereby, the master is liable therefor.

Finding no error in the record the judgment is affirmed.

For affirmance' — The Chancellor, Garrison, Swayze, Trenchard, Parker, Bergen, Minturn, Kalisch, Black, White, Heppenhemier, Williams, Taylor, Gardner, JJ. 14.

For reversal — None.