On appeal from the Supreme Court.
For the appellant, Joseph Coult.
For the respondents, Sylvester C. Smith, Jr., Egbert Rosecrans and Robert Carey.
The opinion of the court was delivered by
CAMPBELL, CHANCELLOR. The respondent John J. Farrell was the owner of lands on Washington avenue, in Washington, Warren county. The buildings upon the lands were used as a hotel, conducted by him and his wife, the other respondent, and known as the Farrel Arms Plaza Hotel.
The appellant owned, used and controlled gas mains in Washington avenue, for the purpose of conducting, transmitting and purveying, as a public utility, gas for lighting and heating purposes.
In the latter part of 1929 and the early part of 1930 the American Telephone and Telegraph Company constructed conduits through Washington avenue, together with manholes, for the purposes of carrying its wires under the surface of the highway. In this plan or system of underground construction was included a manhole which was built in the highway in front of the property of the respondents.
On July 4th, 1930, there was an explosion in this manhole of such force and violence as to do considerable damage to the hotel building.
Suit to recover for such damages was brought by the respondents against the appellant and a trial of the cause resulted in a verdict in favor of the former against the latter for $18,000, which, upon a rule to show cause obtained by the appellant-defendant, heard by the trial judge, resulted in a reduction to the sum of $14,000, which was accepted by the respondents and a judgment for that amount entered against the appellant, from which it appeals and assigns thirty-one grounds for reversal based upon exceptions to trial errors reserved under the aforesaid rule to show cause which was directed solely to the alleged excessiveness of the verdict. Such of the grounds for reversal as are argued before this court are presented under three general points.
Point 1. That it was error to refuse to nonsuit and direct a verdict in favor of the defendant-appellant.
Hereunder it is urged that there was no proof of the following essential matters:
1. That the explosion was caused by gas.
2. That if gas was the cause it was the gas from the pipes and mains of the appellant.
3. That the appellant was shown in any specific way to have failed to perform any duty owing from it.
In the argument presented under this ground, and these points, much stress is laid upon the asserted fact that the proofs do not show that the gas which was noticed as escaping and testified to by the several witnesses was illuminating gas such as was being conducted and sent through the mains of the appellant. This appears to us to be unsound. All the witnesses referred to it as gas and throughout the trial of the cause no one questioned, or suggested, that it was not what is commonly known as illuminating gas, such as was being conveyed by the appellant but on the contrary it is apparent that it was universally considered and accepted as being such gas.
Under this point it appears to be further urged that the duty resting upon the plaintiffs-respondents was to produce definite, affirmative proof of some particular and specific leak or defective pipe, main, or apparatus from which the gas escaped and to which defect and condition the appellant's attention had been particularly called and under such facts and conditions it had failed to remedy the defect or condition of disrepair; in other words, that there must have been proof definitely and accurately tracing the leakage of gas from the pipes and mains of the appellant to the manhole in question, with like definite and positive proof that such gas exploded in the manhole, causing the damage in question.
In the state of the proofs in this case this argument is unsound.
In support thereof there are cited National Sheet Metal Roofing Co. v. Public Service, &c., and New York Telephone Co., 5 N.J. Mis. R. 503; McCombe v. Public Service, 95 N.J.L. 187; Price v. New York Central, 92 Id. 429; Bien v. Unger, 64 Id. 596; Adriance v. Schenck Bros., 95 Id. 185.
From these cases certain fundamental principles are to be gathered:
1. Negligence must be proved; it will not be ...