Eastwood, Bigelow and Francis. The opinion of the court was delivered by Eastwood, S.j.a.d.
[20 NJSuper Page 298] This appeal raises the issue of the liability of the defendant corporation, arising out of the destruction of the plaintiff's home, resulting from an explosion and fire from escaping gas emanating from a gas pipe line in the cellar when a meter stop-cock broke in the plaintiff's attempt
to turn it to the "on" position. A jury returned a verdict in favor of the plaintiff in the sum of $16,000 damages and costs and the defendant appeals from the ensuing judgment.
On October 2, 1950, prior to the departure of the plaintiff and his wife from their home, 1002 Broadway, Long Branch, New Jersey, for a brief visit to Atlantic City, plaintiff, for the purpose of shutting off the flow of gas into his home, turned off a valve known as a meter "stop-cock." Upon his return on October 6, 1950, at approximately 4:25 P.M., he entered the cellar and with the aid of a wrench, proceeded to turn the stop-cock to the "on" position. In doing so, the stop-cock was broken, permitting the uncontrolled gas to flow into the house. Guzzi attempted to stop the flow of gas by stuffing rags into the opening. Failing therein, he called to his wife to notify the defendant company of the situation, whereupon, according to her testimony, she immediately telephoned the defendant company and advised them of the matter; that thereafter she became excited and ran to the second floor of the house and opened the windows. Mr. Guzzi came up from the cellar and failing to see his wife and not knowing whether she had made the call, thereupon telephoned the defendant company, advising them of the situation and requesting immediate aid. Thereafter, plaintiff and his wife left the house. Approximately 20 minutes later, before defendant's emergency crews arrived, an explosion occurred followed by a fire which virtually destroyed the plaintiff's premises.
Plaintiff instituted suit against the defendant for the recovery of damages based upon two counts, i.e. , that the defendant utility company improperly installed and maintained its gas distribution system to plaintiff's home and secondly, that upon being notified of the emergency situation, defendant failed to respond and take the necessary steps to correct the situation for an unreasonable period of time, and by reason thereof the gas escaped into and filled their home, was ignited and exploded to plaintiff's injury and damage.
The defendant unsuccessfully moved for a dismissal of the action at the end of the plaintiff's case and for a directed verdict at the end of the entire case. The defendant's appeal is based upon the alleged erroneous rulings of the court in denying its motions for dismissal and the erroneous charge of the court to the jury.
The defendant argues that the trial court erred in denying its motion to dismiss the first count of the complaint in that there was no proof that defendant's installation deviated from the established standard and no proof that the breaking occurred through any failure on defendant's part in installation or maintenance which was the proximate cause of the explosion; that defendant's failure to respond within the 20 minute interval between the time the first notice of emergency was given and the time of the explosion, presented no evidence of actionable negligence proximately causal to this occurrence and that, therefore, defendant's motion for dismissal as to the second count should have been granted by the trial court; that the plaintiff, by his own acts, exposed himself to dangers which were well recognized as hazardous or readily discoverable and that his contributory negligence and assumption of risk were established conclusively as a matter of law, and that, therefore, he is precluded from complaining of injuries which resulted to him; that the trial court committed harmful error in its charge to the jury regarding the absence of a locking device on the meter stop-cock, thereby casting absolute liability upon the defendant.
Where a motion for a dismissal is made at the end of the plaintiff's case and denied and renewed at the end of the entire case, the only question that will be considered on appeal is the latter motion. We may not weigh the evidence, but must accept as true all evidence which supports the view of the party against whom the motions are made, and must give him the benefit of all legitimate inferences which are to be drawn therefrom. In Visaggi v. Frank's Bar and Grill, Inc. , 4 N.J. 93, 98 (1950), it was said:
"Suffice it to say the rule is well settled that upon motions for dismissal, the equivalent of motions for non-suit or directed verdict under the former practice, the court cannot weigh the evidence, but must take as true all evidence which supports the view of the party against whom the motions are made, and must give him the benefit of all legitimate inferences which are to be drawn therefrom in his favor. Andre v. Mertens , 88 N.J.L. 626 (E. & A. 1915); Boyle v. Baldowski , [117 N.J.L. 320] supra."
Cf. Tedeschi v. Silver Rod-Paterson, Inc. , 15 N.J. Super. 322, 326 (App. Div. 1951); Andre v. Mertens , 88 N.J.L. 626 (E. & A. 1916); Skiba v. Hmieleski , 106 N.J.L. 597 (E. & A. 1930); Maudsley v. Richardson & Boynton Co. , 101 N.J.L. 561 (E. & A. 1925); Lipschitz v. N.Y. and N.J. Produce Corp. , 111 N.J.L. 392 (E. & A. 1933).
Plaintiff's expert witness, Albert E. Forstall, testified that he examined the premises on November 29, 1950, and on December 27, 1950; that it was his conclusion that the gas filled the house from the broken pipe in the basement until it reached proper concentration and was ignited by a spark from the relay switch on the refrigerator located in the kitchen; that from his inspection of the broken meter cock he concluded the same to be of sub-standard construction and not the type used by well-regulated utility companies; that the shell of the stop-cock had thin walls of uneven thickness in its circumference; that it was not strong enough for the purpose for which it was used and that over a period of years, meter cocks have a tendency to stick. Through this witness, the plaintiff offered another meter cock of similar design, but of heavier construction, which he recommended as the preferable type to be used in the installation in question.
Ray L. Cooley, superintendent of gas construction for defendant, was called as a witness for the plaintiff. He testified that he had been employed by the defendant company since 1926 and that he was transferred to the shore area in 1931; that his company had no records indicating the service from the street main to the consumer's home; that no records showed the location or ...