On appeal from a judgment of the District Court of the Fifth Judicial District of the county of Union.
For the appellant, Francis A. Gordon (Frank A. Welt, of counsel).
For the respondents, Benjamin Gershenson (Harry J. Weiner, of counsel).
Before Justices Trenchard, Case and Heher.
The opinion of the court was delivered by
HEHER, J. The gravamen of these actions is negligence; and the specifications are that, on August 26th, 1936, the defendant corporation, a dealer in gas ranges for domestic use, (a) sold to plaintiff Theodore Jaeger and shortly thereafter installed in his dwelling house, a combination coal and gas range, consisting of an oven and four burners, that, for lack of "proper circulation" and deficiencies of construction, adjustment and function, was unsafe for use, and (b) "did not use reasonable care to investigate and find out dangerous character of said chattel;" whereby Jaeger's wife, Olga, suffered burns from a gas explosion occurring while the instrument was in use.
A jury was empanelled to try the issue; and there were verdicts for plaintiffs -- $400 for Olga, and $150 for Theodore, who sued per quod. Defendant appeals from the consequent judgments.
The primary questions, raised by motions to nonsuit and to direct a verdict for defendant, are (a) whether the evidence presented a factual issue as regards the specifications of negligence, and (b) whether contributory negligence conclusively appeared. We are constrained to resolve them against appellant.
As to negligence, the inquiry is whether there is any evidence which, if accepted and given its fullest probative force, reasonably tends to sustain the pleaded cause of action. Is it such that fair and reasonable men would be justified in concluding that the onus probandi had been sustained? Sivak v. New Brunswick, 122 N.J.L. 197. There was such evidence.
Defendant represented the range to be of proper construction and function for safe domestic use; and there was tangible evidence tending to establish the contrary. Apart from the indisputable failure of function, there was expert evidence of improper construction, in that there was inadequate air circulation, and "more gas" was "fed in than could be lighted," whereby, "when the flame was turned to one-sixteenth inch flame there wasn't sufficient air entering into it to keep the burner lighted when you closed the door fast," and thus there was danger of explosion of the accumulated gas when the door was opened. This is what happened here.
Moreover, upon complaints by the plaintiffs, made on three separate occasions, defendant undertook to remedy this defect, and, upon the conclusion of its efforts in that direction, advised plaintiffs that necessary adjustments had been made and the instrument was no longer dangerous to use. It is elementary that the negligent performance of work gratuitously undertaken is actionable if damage ensues as the proximate result thereof.
Pointing to the testimony of the expert witness that "poor circulation" in the room in which the range was installed might be a contributing factor, the contention is made that the onus was on plaintiffs to "exclude inferences of negligence which could ...