On appeal from the Superior Court, Appellate Division.
For reversal -- Chief Justice Vanderbilt, and Justices Case, Oliphant, Wachenfeld, Burling and Ackerson. For affirmance -- None. The opinion of the court was delivered by Ackerson, J.
Plaintiff brought this action in the Superior Court, Law Division, to recover damages for injuries alleged to have been sustained when he was struck on the head by a piece of sheet metal while on defendant's premises as an invitee.
At the close of plaintiff's case the defendant rested without putting in any evidence and each party moved for the direction of a verdict (actually a motion for judgment) pursuant to Rule 3:50. Defendant's motion, made on the ground that there was no proof of negligence on its part which proximately caused the plaintiff's injury, was granted and judgment was accordingly entered for the defendant. On plaintiff's appeal the Appellate Division reversed, and, since one judge dissented, the present appeal by the defendant is before us as of right pursuant to Rule 1:2-1 (b).
The determinative question presented on this appeal is whether or not plaintiff's proofs established a prima facie case of defendant's negligence requiring the submission of that issue for the jury's determination.
The evidence tended to establish the following pertinent facts: On January 7, 1948, the plaintiff, Carl Hansen, was one of eight or ten carpenters engaged in the completion of the interior of a large one-story building which his employer, Wigton-Abbott Company, an independent contractor, had undertaken to build for the defendant, Eagle-Picher Lead Company, as an addition to its plant. The building was then in the final stages of construction and was turned over to the defendant in May, 1948. Defendant is a manufacturer of paint products; its plant, located on premises off Blanchard Street in the City of Newark, covers an extensive area of buildings and grounds surrounded by a fence. Entrance thereto is obtained through a guarded gate, and all buildings, streets and roads within the fenced area are the private property of the defendant, closed to the general public. On the aforementioned day (January 7, 1948), the plaintiff, accompanied by Anthony Aiello, an apprentice carpenter, went to
the plant cafeteria during a scheduled rest period to have a cup of coffee. While walking back to the new building on one of the defendant's private roads, plaintiff was struck on the head -- "just to the right of the top of the head" -- by an object which caused the injuries for which damages are now sought.
At the time of the accident plaintiff had been walking, with Aiello on his right, in a general northerly direction toward the one-story building under construction which lay approximately 100 to 150 feet directly in front of them, and they were about 25 to 35 feet away from the side line of a five-story building described as a mill and warehouse which was situated on plaintiff's left or westerly side. The new one-story structure ran across the road and joined the higher building near its center, thereby forming an "L" or wing. The area immediately to plaintiff's right was an open space, but they were approaching a small building on that side where the contractor maintained a field office and next to this was defendant's machine shop.
The plaintiff, although sustaining a deep cut on his head, did not see what struck him; neither did Aiello who testified that he also was struck on the head by the same object causing his hat to be knocked off, and on turning around he saw a piece of galvanized sheet metal lying in the street alongside his hat. He had not observed this object in the street while he and plaintiff were walking, and assumed that this was the instrumentality which had struck them because it was the only object lying in the street after the occurrence. It was a straight strip of metal (not corrugated) three feet by two feet in size and one-sixteenth to one-eighth of an inch thick. Investigation of this article shortly after the accident revealed that "It still had blood on it."
In the trial court the plaintiff, as appears from his counsel's opening statement and the pretrial order, relied upon the doctrine of res ipsa loquitur to raise a prima facie inference of negligence. The trial judge in granting defendant's motion for judgment, ruled that the plaintiff was not entitled
to the presumptive effect of the aforesaid doctrine because there was no evidence from which it could be reasonably inferred that the defendant had control or management of the piece of metal claimed to have caused the injury complained of, nor that it fell or came from the five-story building he was passing at the time of the occurrence. In reversing the judgment below, the majority opinion of the Appellate Division held that the case was one of "circumstantial evidence" wherein the probabilities that the injurious agency came from ...