On appeal from a judgment of the Supreme Court.
For the defendants-appellants, Leon M. Bardfeld and LeRoy W. Loder.
For the plaintiffs-appellees, David L. Horuvitz.
The opinion of the court was delivered by
WELLS, J. This is an appeal from a judgment of the Supreme Court entered on the verdict of a jury at the Cumberland Circuit in favor of the plaintiff George Noa for
$7,000 and in favor of the plaintiff Carmela Noa for $500 against both defendants, Russell LeGore and Mary LeGore.
The allegations of the count of the complaint upon which the issue was tried are based on the negligence of the defendants in installing a water pumping system, the storage tank of which exploded injuring both plaintiffs and damaging their property. The complaint alleges that on June 7th, 1941, the plaintiffs entered into a written agreement with the defendants for the purchase of a certain tract of land with the improvements erected thereon located in Landis Township, Cumberland County, New Jersey; that in and by the terms of the agreement the defendants, as a condition of said sale, among other things, covenanted and agreed with the plaintiffs that they would install in the house erected on the premises an electric water pumping system, the same to operate in good working order. The complaint charges that the system was so negligently and carelessly installed that as a result on Wednesday, August 20th, 1941, before the defendants had an opportunity to use the water system, the water tank exploded, the force of which caused the tank to be projected from the cellar where it stood through the floor joists into the kitchen of the house where plaintiffs were then sitting, striking and knocking them down and causing the injuries set forth in the complaint.
There are twenty-two acts of negligence on the part of the defendants alleged in the complaint, which set forth, among other things, defects in the various parts of the apparatus, including a defective electric switch, failing to provide a safety valve and other necessary parts, faulty workmanship and the employment of an incompetent and unlicensed person to install the apparatus.
Defendants argue their appeal under two points. The first point is that it was error on the part of the trial court to refuse to direct a verdict for the defendants on the ground that the plaintiff George Noa was guilty of contributory negligence. The second point has to do with the refusal of the trial court to charge one of defendant's thirteen requests to charge.
Counsel for defendants do not argue on their brief that at
the conclusion of the whole case there was not sufficient evidence of their negligence to justify the trial court in submitting that question to the jury. We shall, therefore, consider that point as abandoned. Defendants, however, strenuously contend that the evidence is conclusive that the proximate cause of the explosion was the negligent act of the plaintiff George Noa in failing to watch the gauge, after turning on the switch, in accordance with instructions given him by Brown, the workman employed by defendants to install the system, and that a verdict, therefore, should have been directed for the defendants, at least as to the plaintiff George Noa.
With this we are not in accord. Inasmuch as contributory negligence is usually a fact question for the jury (Rizzolo v. Public Service Co-ordinated Transport, 111 N.J.L. 107), we deem it advisable to recite some of the pertinent facts brought out by the testimony. Among the appliances used in this water system was an electric water pump having a rated pumping capacity of 250 gallons per hour, which draws water from a driven well to a storage tank with a capacity of 80 gallons. Tanks of this type are tested at the factory at 125 pounds and are made to withstand a pressure of 75 pounds daily. As the water is pumped from the well by the motor into the tank, the air is forced to the top of the tank and thus compressed, forcing the water through the various pipes to the faucets, and other outlets. It is well known, and the experts so testified, that excessive pressure causes a tank to ...