Before MEDINA, WATERMAN and MARSHALL, Circuit Judges.
On April 26, 1960, Mario Vecchio, an electrician employed by the Art Kraft Strauss Sign Corporation, fell to his death while servicing an electric sign atop a Newark, New Jersey brewery owned by Anheuser-Busch, Inc. His widow thereafter brought this action against Anheuser-Busch, Inc. in the United States District Court for the Eastern District of New York. The action was grounded on the alleged negligence of the defendant, and jurisdiction was properly based on diversity of citizenship.
At the conclusion of plaintiff's case the defendant moved for a directed verdict in its favor and renewed that motion at the close of its own case. The court refused to direct a verdict, and the case went to the jury. A verdict was returned in favor of defendant, judgment was entered accordingly, and plaintiff has appealed on the ground that the trial court erred in its charge to the jury. While it does appear that the charge given was improper inasmuch as it left to the jury the task of defining the legal duty owed plaintiff's intestate by defendant, the record in the case demands that the judgment entered below be affirmed. We find that the facts developed by plaintiff during the trial were insufficient to permit recovery under governing New Jersey law, and we hold that defendant's motion for a directed verdict should have been granted.
The sign which plaintiff's decedent was servicing when he was killed was one of two such signs erected atop defendant's Newark brewery in 1951 by Art Kraft Strauss Sign Corporation, decedent's employer. Emblazoned with defendant's advertising emblem, and equipped with electric lights and neon tubing, the sign stood 30 feet high and 25 feet wide. It was supported by a metal structure embedded in the roof of the two-story brewery.
Access to the sign for servicing was had by means of a scaffold built onto it by Art Kraft Strauss when the sign was erected in 1951. The scaffold extended the length of the sign, and was supported by two cables of wire rope which were attached to its metal top. Winches on the scaffold enabled workmen servicing the sign to move the scaffold up and down on the cables. The scaffold and cables were destroyed by a hurricane in 1954 and were replaced at that time by Art Kraft Strauss Sign Corporation, decedent's employer. The replaced cables and scaffolding remained on the sign until the day of plaintiff's decedent's unfortunate accident in 1960.
On the day of the accident Art Kraft Strauss ordered plaintiff's decedent and two of its other employees to service the signs on top of defendant's brewery. They were furnished with special wire for testing each sign's electrical equipment and with new electric lamps and neon tubing to be used in replacing any fixtures they might discover had deteriorated. Art Kraft Strauss issued no warnings to decedent and its other workmen relative to the condition of the scaffolding and cables on the signs.
Plaintiff's decedent and his fellow workmen arrived at defendant's brewery and proceeded to service one of the signs. Decedent and another workman, Picone, were on the sign's scaffold when the accident occurred. They had been working with the scaffold hoisted to the top of the 30-foot sign, and having completed their work there, were lowering the scaffold. The cable supporting the side of the scaffold occupied by plaintiff's decedent suddenly snapped, and both men were thrown off. Picone managed to save himself by grabbing onto a guide cable, but plaintiff's decedent fell 100 feet through the roof of a lower adjoining building and thereby met his death.
Plaintiff claimed at the trial that at the time of the accident the advertising sign and its attached scaffold had been owned by defendant Anheuser-Busch, Inc., and that defendant had been negligent in failing to keep the scaffolding and cables in a safe condition. She introduced evidence tending to show that the cable which had snapped had done so because of deterioration caused by corrosion, that the cables had not been protected or covered in any way, and that smoke and vapors emitted from defendant's brewery buildings may have accelerated the corrosion of the cables.
When Art Kraft Strauss erected the sign in 1951, it entered into an agreement with defendant through the latter's advertising agent which provided, inter alia, that title to the sign was to remain in Art Kraft Strauss until certain payments had been made to it by defendant. Another agreement was entered into in 1956, providing primarily for maintenance of the sign by Art Kraft Strauss, but also containing reservation of title provisions similar to those which had been incorporated into the 1951 agreement. Plaintiff contends that, despite the reservation of title provisions and the failure of defendant to make one payment called for in the contract, title nevertheless had passed to defendant by the time of the accident. Defendant argues that title had not passed.We find no need to examine in detail the part of the agreement relating to passage of title or the effect of the payments made pursuant to it, for it is clear that the defendant must be treated as the owner of the sign for the purposes of this case. Indeed, we will assume while we examine plaintiff's claimed grounds for liability that defendant did, in fact, own the sign at the time of the accident in 1960.
By far the more important part of the 1956 agreement was that part dealing with the maintenance and care of the sign. The agreement expressly stated that it was to cover its "complete maintenance" and that of the companion sign, and the responsibility for this maintenance was placed on decedent's employer, Art Kraft Strauss.As the scaffolding and cables were part of the sign, and were used exclusively for maintenance operations by Art Kraft Strauss's employees, Art Kraft Strauss was responsible for maintaining both the scaffolding and cables and the advertising portion of the sign. Plaintiff's counsel admitted as much in the course of a colloquy with the court below, and plaintiff's own witness, one of decedent's fellow workmen, testified that he had himself inspected and greased the scaffold cables "forty or fifty times" while working on the sign on previous occasions. It was undisputed that Art Kraft Strauss had erected new cables and scaffolding to replace those destroyed by a hurricane in 1954. No evidence was introduced by plaintiff tending to show that employees of defendant had ever worked on the sign, or the cables, or the scaffolding, or had ever directed work on them. Under New Jersey law, these facts being uncontroverted, defendant violated no duty owed by it to plaintiff's decedent, and any blame for negligence in causing the accident in this case must rest solely on decedent's employer, Art Kraft Strauss.
Continuing to treat the defendant as the owner of the sign and the scaffolding, we reach plaintiff's argument that defendant, as such owner, is bound by certain provisions of the New Jersey Safety Code in effect in 1960, R.S. 34:5-1 et seq., N.J.S.A., relating to the maintenance of scaffolding and work at elevated places generally. This argument must fail, however, because of the interpretation the New Jersey courts have given that section of the Safety Code which lists the persons upon whom its provisions are binding. The section in point is section 34:5-161 of N.J.S.A., and it imposes obligations under the Code upon "[any] manager, superintendent, owner, foreman or other person in charge of any building, construction or other place" where a Code violation occurs. In interpreting this section of the Code, the New Jersey courts have emphasized the words "or other person in charge," and have therefore refused to apply the Code's requirements to persons included within one of the categories set forth earlier in the section but who are nevertheless not in control of the work or premises connected with a Code violation. Gibilterra v. Rosemawr Homes, Inc., 19 N.J. 166, 115 A.2d 553 (1955); Trecartin v. Mahony-Troast Const. Co., 18 N.J.Super. 380, 87 A.2d 349 (App.Div.1952).
In Gibilterra v. Rosemawr Homes, Inc., supra, one of the defendants, Rosemawr Homes, had hired the United Construction Company to do excavation work on a tract of land owned by Rosemawr. It had also hired one Vellone to do the plumbing work on the project. One of Vellone's employees was injured when a trench dug by United Construction Company's steam shovel operator, Bayley, collapsed. The injured employee argued that Rosemawr, as owner of the land being excavated, was bound by certain provisions of the New Jersey Safety Code relating to excavations. New Jersey's highest court rejected the argument, reasoning as follows:
"The obligations under the Safety Code, R.S. 34:5-1 et seq., N.J.S.A. * * * are imposed only upon 'any manager, superintendent, owner, foreman or other person in charge of any building, construction or other place, in which this chapter is violated,' R.S. 34:5-161, N.J.S.A. (Emphasis supplied.) Whatever may be the case as between Vellone, on the one hand, and United and Bayley, on the other, one or the other of them, and not Rosemawr, was 'in charge' of the 'place,' the trench, where the ...