Before BIGGS, Chief Judge, and GOODRICH and KALODNER, Circuit Judges.
In a diversity action, plaintiff, Gustave Harrison,*fn1 brought suit against two New Jersey corporations, Blueberry Hill, ("Blueberry") and Tryon (Construction Corp. ("Tryon"), seeking damages based on alleged negligence. Blueberry was the owner of a house in course of construction in Tenafly, New Jersey. Tryon was the carpenter contractor engaged by Blueberry. Plaintiff was employed by Key Painting Company, ("Key"), painting contractor on the job.
Blueberry in its answer to plaintiff's complaint denied negligence and affirmatively set up plaintiff's negligence. It also cross-claimed against Tryon for indemnification.
At the conclusion of the taking of testimony and before submission to the jury, the trial judge granted Blueberry's motion for dismissal of plaintiff's action. He denied a similar motion made by Tryon. However, he granted Tryon's motion to dismiss Blueberry's cross-complaint stating (p. 393, 394 N.T.): "Because they are out of the case * * * they [Blueberry] could have no cross claim against you." During the noon recess plaintiff settled with Tryon and entered into an agreement of dismissal as to it. Plaintiff advised the trial judge of its action when court resumed in the afternoon, stating however, that he was reserving his rights with respect to Blueberry's dismissal. About a week later plaintiff filed with the District Court a "Stipulation of Dismissal as to defendant, Tryon Construction Corp." which provided that it was "with prejudice". Subsequently, the trial judge entered an Order dismissing plaintiff's action against Blueberry and Blueberry's cross-complaint against Tryon.
Two appeals have resulted from that Order. In No. 12,356 plaintiff appeals from that part of the Order dismissing its action against Blueberry, and in No. 12,357 Blueberry appeals from the part of the Order dismissing its cross-claim for indemnification against Tryon.
Plaintiff's appeal presents the simple issue as to whether he had made out a case requiring submission to the jury. Blueberry's appeal is concededly protective in nature. It is premised on the contention that the trial judge only dismissed Blueberry's cross-claim against Tryon because he had dismissed plaintiff's action against Blueberry.
The testimony as adduced at the trial may be summarized as follows:
Plaintiff sustained the severe injuries giving rise to this litigation when he was thrown from a ladder when a casement window he was about to paint in one of Blueberry's model houses came out of the wall and struck him.
Plaintiff testified that he received instructions to paint the windows in the model house from David Lieberman, president of Blueberry, on Friday, May 13, 1955; on the following Monday, May 16, 1955, he started painting the windows; Lieberman saw him painting and did not say anything to him; he securely placed a six foot ladder underneath the window sill of the steel casement window in the master bedroom; he climbed the ladder and started to open the left panel when the entire casement window came out of the wall and pushed him backward off the ladder; he fell to the ground; the ladder remained standing; the casement window landed on the ground next to him breaking four panes of glass; with the exception of a piece of temporary molding about six or eight inches long with two twopenny nails, only the window itself, and no part of the wooden frame, fell to the ground; and there were no nails or screws observed in the window on the ground.
This account of events was contradicted by Lieberman who testified that plaintiff fell from an extension ladder, not a step ladder, as he was painting the peak of the house above the casement window and that the fall was caused by improper placement of the ladder on uneven ground. According to Lieberman's testimony, plaintiff reached out through the rungs of the ladder as he fell and grabbed one of the panels of the casement window in order to check the fall; instead, the entire window was pulled from the wall.
Lieberman further testified that Key supplied all paints, materials, brushes and ladders used on the job in the performance of the painting contract by its employees; Blueberry supplied Tryon and the other contractors with the materials used in the construction of the house, including the casement window in question; the window was purchased with a wood surround screwed to the metal frame by the manufacturer; and that Tryon installed the window two or three weeks before the accident. He denied instructing plaintiff to paint the windows of the house and stated both Key and Tryon had foremen on the job who were charged with the duty of actively supervising the work of their respective employees.
Several interrogatories and the defendant's answers were read into evidence by the plaintiff. Blueberry stated in these answers that prior to the date of the accident an "inspection of the window" was made by Lieberman "on his rounds of inspection of the building". On cross examination Lieberman testified when he made his inspection of the window he "shook it in order to loosen it up, in order to close it" but that he did not shake it to see if it was secure. He admitted, however, that in his deposition he stated that he had checked the window by giving it a "vigorous shake" and that he had specifically checked the window to see that it was "stationary and firm" and "to make sure that the window was secure."
Blueberry further stated in answer to the interrogatories that Lieberman supervised the "work done in the erection and completion of a house" on its behalf. At the trial, Lieberman objected to the use of the term "supervising" to describe his activities, and testified that he would "coordinate the work to make sure that there is no loss of time between the time one trade would get in and the other would get in." He denied that he was acting as a general contractor but admitted that on deposition he had stated the contrary. He also admitted that on deposition he stated he supervised the construction of the house as it was being put up; that he was the person in charge of the general construction of the building; ...