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49 Vroom.

Cetofonte v. Camden Coke Co.

knowledge, and which are not discoverable by the exercise of

reasonable care upon the part of the servant. 7. Under section 140 of the Practice act (Pamph. L. 1903, p. 575).

which provides that the written answers to written interrogatories submitted before trial upon any matter material to the issue shall be evidence in the action if offered by the party proposing the interrogatories, but not otherwise, the action of the trial judge in permitting the answer to one of several interrogatories to be offered and read in evidence without admitting the answers to the remaining interrogatories cannot be said to be erroneous when there was no showing nor offer to show, either in the trial court or in the reviewing court, that the remaining answer's were material to the issue or that they tended to

explain, qualify or limit the answer admitted. 6. Under the act of March 3d, 1848 (Gen. Stat., p. 1188), an

administrator appointed in New Jersey may maintain an action within the state for damages for the death within the state of an alien caused by the wrongful act or neglect of another, despite the fact that the decedent's widow, his sole beneficiary, was at the time of such death, and still is, at the time of the commencement of the action, a non-resident alien.

On error to the Supreme Court.

For the plaintiff in error, Edward Ambler Armstrong, Lefferts S. Hoffman and Leonard J. Tynan.

For the defendant in error, William C. French.

The opinion of the court was delivered by

TRENCHARD, J. The plaintiff's intestate, a common laborer, was employed in the plant of the Camden ('oke Company, wheeling coke. He was an ignorant Italian, nineteen years of age, and had but little understanding of the English language.

The coke plant was a large one. Several tracks formed of steel rails extended between the place where decedent and other employes worked and the place where the drinking water for the men was kept. Some of these rails were heavily charged with electricity for the purpose of operating a device known as a "pusher.” Some of the rails thus charged were guarded by a covering of boards; some were not guarded at all: On the ninth day of his employment the decedent at

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78 N. J. L.

tempted to cross these rails for the purpose of getting some water, as was the custom of the men, and stepped upon an unguarded rail and was killed.

This suit was brought under the Death act against the coke company and the Public Service Corporation of New Jersey to recover for the pecuniary injury to his widow and next of kin.

The trial at the Camden Circuit resulted in a verdict of the jury in favor of the plaintiff and against the defendant the Camden Coke Company, and this writ of error, sued out by the company, brings up for review the judgment entered thereon.

The first assignment of error argued is that the declaration is insufficient in law. We think not. The gravamen of the action is the defendant's failure to perform a duty to warn the plaintiff's intestate of an unusual danger of the place of work. The defendant's argument is that there was no allegation of lack of warning. We think there was. In support of the contention we are pointed only to that part of the declaration in which the plaintiff has chosen to define the defendant's duty. But an express allegation of the master's duty is unnecessary and will not sustain or aid a pleading. The facts and circunstances from which the duty arises must be set out in the declaration, and the pleading is sufficient if the law implies a duty from the facts and circumstances stated. Clyne v. Helmes, 32 Vroom 358; Marvin Safe Co. v. Ward, 17 Id. 19; Breese v. Trenton Horse Railroad Co., 23 Id. 250. Now, in that part of the declaration which alleges what the defendant omitted to do it avers that the defendant negligently and carelessly permitted a certain steel track heavily charged with electricity to be insufficiently and negligently guarded "and without any warning of its dangerous nature or any notification thereof" to the decedent, kept and maintained the heavily-charged track in a negligent and careless manner, so that while the decedent was lawfully passing across the defendant's yard he came in contact with the track, without any fault on his part, and was killed. Plainly, therefore, the declaration averred failure to warn.

49 Vroom.

Cetofonte v. Camden Coke Co.

The second assignment of error argued is upon the refusal of the trial judge to nonsuit the plaintiff. The ground taken was that no liability of the defendant was shown by the testimony. The contention now is that it was not shown that the decedent was ignorant of the danger, nor that the defendant failed to warn him. But we think that fair-minded men might honestly have drawn the conclusion from the uncontroverted facts, both that the decedent was ignorant of the danger and that he was not warned of it. Both questions were, therefore, properly submitted to the jury. Nolan v. Bridgeton and Millville Traction Co., 45 Vroom 559.

It is further contended, however, that the duty to warn the plaintiff's intestate would only arise when the defendant knew that the plaintiff's intestate did not know of the danger. In the argument the defendant relies upon the case of Murphy v. Rockwell Engineering Co., 41 Vroom 374, in which it was held that the fact that an employer did not warn an adult employe of a risk which was naturally incident to the employment, will not render the former responsible to the workman for an injury received by him because of his ignorance of the risk, in the absence of evidence that the employer had notice of such ignorance. But, as will be seen, the principle there stated is limited to risks naturally incident to the employment. The immunity of the master in such cases rests upon the contract of hiring. The master says to the servant: “You understand fully the nature of the employment and the danger attending it; will you enter it?” The servant says, “I accept it," and the law implies that he accepts it with all the risks incident to it, without regard to the magnitude of the danger. Foley v. Jersey City Electric Light Co., 25 Id. 411. But in this case decedent was hired as a common laborer and was employed in loading coke on cars. His death was not due to danger naturally incident to his employment. It was rather the result of a latent danger growing out of the unsafe condition of his place of work. The danger to him, and which caused his death, consisted of rails heavily charged with electricity extending across the yard of the defendant and so negligently unguarded that persons lawfully there

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78 N. J. L.

were in danger of being killed on passing over them. While the decedent assumed all the risks which were necessarily incident to his employment, or which were obvious or known to him, he did not assume the risk of injury due to the failure of the defendant to exercise reasonable care in furnishing him a safe place to do his work. McDonald v. Standard Oil Co., 40 Id. 415; Conway v. Furst, 28 Id. 645. If in the place of work there is an unusual danger which is not obvious, it is the duty of the master to warn those who are to incur it of its existence. Paulmier v. Erie Railroad Co., 5 Id. 151. That the rails in question were harmless in themselves when not charged with electricity, and that they were dangerous when charged with a deadly current, is quite clear. It is equally clear that there is no difference in appearance between a charged and an uncharged rail. It appears, therefore, that the rails were not an obvious danger. It necessarily follows that the principle that an employer is not liable for failure to warn an adult employe of a risk naturally incident to the employment, in the absence of notice of the ignorance of the workman, has no application to this case where the decedent was killed as the result of a latent danger in the place of work and not naturally incident to the employment. Thus, in an interesting case in California (Baxter v. Roberts, 44 Cal. 187), the evidence was that B., who was a carpenter, was employed by R. to go in a boat upon a submerged lot owned by him, and do certain work of his trade. While there at work, a shot was fired from a house on an adjacent lot, which wounded B., hence his action for damages. It appeared that R. knew his possession of the lot was resisted, and a resort to arms was imminent at any moment. He did not inform B. of this fact, and the latter had no reason to believe that he was going into danger when employed to do the work. It was held that R. was liable, for the reason that the concealment of facts, or the failure to state them by the employer to the employe, which would tend to expose any hidden and unusual danger to be encountered in the course of the employment, to a degree beyond that which the employment

49 Vroom.

Cetofonte v. Camden Coke Co.

fairly imports, renders the employer liable for injuries resulting therefrom to the employe.

The third assignment of error argued challenges the propriety of the charge of the court to the effect that if there existed upon the premises of the defendant where decedent was employed a latent danger not apparent to a man of ordinary observation, it was the duty of the defendant to warn the decedent of such danger. The criticism is that it is only when the master knows, or by reasonable inspection could discover the latent danger, that the duty to warn arises. But in this case the danger which was hidden and concealed from the servant was well known to the master. It had been installed by the defendant upon its premises and was used in a certain department of the defendant's work. Since the principle invoked had no application to the case, it, of course, was not charged.

The fourth assignment of error argued is that the court wrongfully permitted the answer to one of several interrogatories to be put in evidence.

It appears that, before trial, the plaintiff served upon both defendants several written interrogatories in pursuance of section 140 of the Practice act. Pamph. L. 1903, p. 575. That section provides that after an action is at issue either party may serve on the adverse party written interrogatories upon any matter material to the issue, and the answer shall be evidence in an action if offered by the party proposing the interrogatories, but not otherwise.

Both defendants answered in writing.

At the trial the plaintiff offered in evidence and read one of the several answers made by the Camden Coke Company. The defendant objected to the admission of that answer unless the answers to all of the interrogatories submitted and answered were put in. There was no showing nor offer to show, either in the court below or here, that the remaining answers were material to the issue or that they tended to explain, qualify or limit the answer admitted. Clearly, in the absence of such showing, the action of the trial judge cannot be said to be erroneous. What the result might have been in a dif

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