Stokes v. . Barber Asphalt Paving Co.

Werner, J. The action is brought to recover damages for personal injuries under a New Jersey statute, known as chapter 64 of the Laws of 1904, which, so far as pertinent, provides that “ The opening of all hoistways, hatchways, elevators and well-holes upon every floor of any place * * * shall be protected by good and sufficient trap doors or self-closing hatches or safety catches or guard rails, at least three feet high, and shall be kept closed and protected all the time except when in actual use by the occupant of the building having the use and control of the same.” The plaintiff relies upon this statute, and the defendant takes the position that it does not apply. We are inclined to agree with the contention of defendant’s counsel. The statute was evidently intended to provide for the safeguarding of open hoistways, hatchways and elevators by means of self-closing hatches, safety catches and guard rails; and while these safety devices are required to be *256 placed upon “ every floor of any place,” coming within the provisions of the act, it is obvious that it does not relate to a place like that in which the plaintiff was injured. This was not an opening through a floor or hatchway to another floor or floors below, but simply an opening in the platform on the ground floor of sufficient depth to receive the elevator when in place on the first floor. The opening thus made was only a few inches deep and was obviously not the kind of a place which, under the provisions of this statute, was to be guarded by the means referred to. We think it was error, therefore, to receive the statute in evidence over the defendant’s objection and exception. But this view of the statute does not dispose of the plaintiff’s cause of action, for the allegations of his complaint, no less than his proofs, make out a common-law cause of action; and we regard the evidence as entirely sufficient to create a question of fact for the jury upon the issues, whether the defendant was guilty of negligence, and the plaintiff free from contributory negligence. Had the case been fairly and fully submitted to the jury upon these two issues, we should feel bound to affirm the judgment. There is in the charge, however, an error so obvious and serious in its nature that we cannot overlook it without creating confusion in the law in cases of this character. After the learned trial court had concluded the charge in chief, defendant’s counsel requested the charge, “That if the plaintiff was guilty of any contributory negligence, which was the proximate cause of his hurt, or contributed to his hurt, then he cannot recover in this case.” As the learned trial court had not even alluded to the subject of contributory negligence in. the main charge, this request was both pertinent and proper, and should have been unequivocally granted. Instead of doing this the learned trial court charged that “ The plaintiff was bound to exercise reasonable care; but he had a right, if you find *257 that he is telling the truth here, to rely upon the promise made by Mr. Childrey that he would stay there while he worked, and he had a right to rely upon the duty of the defendant to see that some notice of the moving of this elevator was given. ” Then, as if to emphasize the refusal to charge as defendant’s counsel had requested, the court added, “ You can take an exception to my refusal.” If the court had in its main charge fairly submitted to the jury the question of plaintiff’s freedom from contributory negligence, the request of defendant’s counsel might have been safely denied upon the ground that the court had already charged upon that subject. This court frequently overlooks a refusal to charge a request that is technically correct because the charge in chief fairly presents the question. That is not this case, however, for the learned trial justice had not spoken upon the subject of plaintiff’s contributory negligence when defendant’s counsel made his request. As the case then stood, the defendant was entitled to this charge, unqualified by any reference to the New Jersey statute, or the promise said to have been made by Mr. Childrey that he would remain with the plaintiff while the latter was taking off these doors. The learned trial court’s allusion to the statute and the testimony regarding Childrey’s promise may have had the effect of confusing the jury in considering the plaintiff’s rights and duties. Whether this is true or not, it was clearly a substantial right of the defendant to have the court charge, “ That if the plaintiff was guilty of any contributory negligence, which was the proximate cause of his hurt, or contributed to his hurt, then he cannot recover,” and the failure of the court to charge as requested is so serious an error that we cannot ignore it. The judgment should be reversed and a new trial granted, with costs to abide the event. Cullen, Ch. J., Willard Bartlett, Hiscock and Collin, JJ., concur; Gray and Chase, JJ., dissent. Judgment reversed, etc.