On appeal from the Superior Court, Appellate Division, whose opinion is reported in 11 N.J. Super. 144.
For reversal -- Chief Justice Vanderbilt, and Justices Case, Oliphant, Burling and Ackerson. For affirmance -- Justice Wachenfeld. The opinion of the court was delivered by Oliphant, J. Wachenfeld, J. (dissenting).
This is an appeal from a judgment of the Appellate Division which reversed a judgment of the Superior Court, Law Division, entered on the verdict of a jury in favor of the defendant and against the plaintiffs. The case was certified here after petition therefor.
The action was in negligence to recover damages sustained by the plaintiffs as the result of an explosion of propane gas which had escaped from a side-arm hot water heater, installed by the defendant on order of the plaintiff, Mr. Seward, in his home as part of a system which included a gas storage tank with connections and a gas stove which was placed in the kitchen.
The complaint charged negligence in very general terms alleging, (1) that the appellant had furnished improper equipment and appliances; (2) that the appliances and equipment had been improperly installed, and (3) that it had furnished unsafe and highly dangerous gas for the operation of the system.
The facts are set out in complete detail in the opinion of the Appellate Division and will only be repeated here when necessary for the disposition of this appeal.
The immediate cause of the explosion was an attempt by the plaintiff, Helen Seward, to re-light the gas heater after it had gone out for some unaccountable reason. It was 30 or 40 minutes after she had originally lit the heater that she discovered the flame had gone out. She testified she then waited about two hours, knowing the gas was dangerous, before she attempted to re-light it, but when she lit the match and even before she opened the door of the heater the explosion occurred.
Both the trial court and the Appellate Division sustained the trial contentions of the defendant, and properly so, that there was no proof before it that the equipment and appliances themselves were defective and improper, that the doctrine of res ipsa loquitur was without application and that there was no proof that in 1939 the established practice required propane gas facilities to be equipped with automatic gas shut-offs. In fact, an automatic shut-off valve was not ordered by the plaintiffs, the order specifically calling for a manually operated side-arm water heater to which there was later attached, by some one other than the defendant, a signal device which indicated on a red bulb in the kitchen whether the gas in the heater was turned on or off. This particular device could not and did not indicate whether the heater was actually lighted. In fact, it was showing red at the time the injured plaintiff discovered that the heater had actually gone out.
As the result of the rulings of the trial court there remained only one disputed issue of fact which went to the jury, and that was whether or not the gas supply had been odorized. Pure propane gas is odorless and the testimony was that it is established practice of the appellant, and every other company in the field, to infuse the pure gas with a small amount of ethyl mercaptan which produces the strong and odd-smelling odor which one usually associates with illuminating gas. Mrs. Seward's testimony was that she walked around in the cellar and could not smell any gas even when she first went down, when the gas had been running for some time without
a light, and that she did not smell it when she returned at the time the explosion occurred.
On the issue as to whether the gas had been odorized the jury found for the defendant, and we must necessarily start with that premise.
The remaining contention of the plaintiffs at the trial was that the installation of the gas heater was a negligent act in view of the dangerous and explosive qualities of the gas, because there was insufficient ventilation in ...