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Woschenko v. Schmidt

Decided: May 16, 1949.

JOHN WOSCHENKO, PLAINTIFF-RESPONDENT,
v.
C. SCHMIDT & SONS, INCORPORATED, A FOREIGN CORPORATION, DEFENDANT-APPELLANT; MICHAEL BUGLIO, INDIVIDUALLY AND TRADING AS IMPERIAL DISTRIBUTING COMPANY, AND SILVIO VENTURI, ALSO KNOWN AS VITO SILVIO, DEFENDANTS-APPELLANTS



On appeal from the former Supreme Court, Cumberland County Circuit.

Appeal of C. Schmidt & Sons, Inc.: For reversal -- Chief Justice Vanderbilt, and Justices Case, Oliphant, Wachenfeld, Burling and Ackerson. For affirmance -- Justice Heher. Appeal of Buglio: For reversal -- Chief Justice Vanderbilt, and Justices Case, Heher, Oliphant, Wachenfeld, Burling and Ackerson. For affirmance -- None. The opinion of the court was delivered by Oliphant, J.

Oliphant

This appeal brings before us for review a judgment rendered by a jury at the Cumberland Circuit of the former Supreme Court awarding damages in a negligence case against both defendants.

The essential question presented is whether, assuming negligence on the part of both defendants, the proofs were sufficient to present a jury question as to whether the negligence of either or both was a proximate cause of the accident.

Plaintiff attended a christening party given by one Zatzariny on the night of September 25, 1943, at a public hall in Vineland, at which there were well over 100 guests. To enliven this affair Zatzariny had ordered from defendant Buglio, a beer distributor, two half barrels of beer. On the afternoon of the party defendant Venturi, an employee of

Buglio, together with a helper delivered to the hall two wooden half barrels of defendant Schmidt's beer, together with a dispensing box containing coils, which would normally be packed with ice to cool the beer, a spigot, the necessary connecting hoses, a tapping rod and a tank containing 550 pounds of carbon dioxide gas.

At the request of one Lubin, a relative of Zatzariny, and his friend Sitkoff, who were then at the hall preparing for the party on behalf of Zatzariny, Venturi tapped one of the barrels and connected it with the dispensing box and the tank of gas. After the tapping approximately four glasses of beer were drawn to determine whether the unit was operating properly, after which Venturi and his helper departed. There is conflict in the testimony as to whether Venturi opened the valve of the gas tank momentarily to see that it was flowing and also to instruct Lubin and Sitkoff in the use of the valve. If it was opened it is clear that it was closed tightly immediately thereafter, the handle removed by Venturi and given to Lubin who placed it on top of a tall closet nearby and out of sight.

The party commenced about 7:00 P.M. and from that time on until between 11:00 P.M. and midnight Lubin, acting as bartender, dispensed a large quantity of beer both in glasses and pitchers. The beer ran normally throughout this period and Lubin testified there was no trouble with the pressure and at no time was it necessary to use the valve to obtain any gas. After Lubin departed Sitkoff and Zatzariny himself joined in the dispensing of beer, still from the same barrel. It still ran normally until sometime after midnight when the flow slowed and Zatzariny suggested that the second keg be tapped. This was not done, however, because it was then too late in the opinion of some. Notwithstanding the reduced flow of beer it was claimed by plaintiff's witnesses that no gas was drawn from the tank.

Approximately ten to fifteen minutes after the flow of beer had slowed, and while plaintiff was approaching the dispensing unit to obtain a glass of beer, the barrel exploded, the force of the explosion being sufficient to drive it up to the

ceiling knocking a large hole in it and a complete half section of the bottom head of the barrel was blown away. Plaintiff suffered severe injuries to his face requiring the enucleation of the left eye.

The negligence charged against defendant Schmidt was that it used a rotten and defective keg, failed to inspect it for any defective condition and failed to warn persons of its defective condition. That against Buglio and Venturi was that they installed the keg and dispensing apparatus without a gauge in the gas tank and distributed beer in a keg which they should have known was defective. This latter charge was contained in three ...


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