On appeal from the Appellate Division of the Superior Court, certified by the Supreme Court on defendant's motion.
For reversal -- Chief Justice Vanderbilt, and Justices Heher, Oliphant, Burling, Jacobs and Brennan. For affirmance -- Justice Wachenfeld. The opinion of the court was delivered by Heher, J.
The action is in tort for negligence. There was a jury verdict for plaintiff, and the consequent judgment was affirmed by the Appellate Division of the Superior Court. 20 N.J. Super. 296 (1952).
The complaint is in two counts: the gravamen of the first is the escape and explosion of illuminating gas in plaintiff's dwelling house at 1002 Broadway in West Long Branch, New Jersey, through the faulty maintenance and operation of the house supply line used as a part of defendant's gas distribution
system, whereby the house and contents were destroyed; and the second charges want of due care to avert the danger after notice of the break in the supply line.
This is the situation of fact:
On October 2, 1950, before leaving with his wife for Atlantic City for a stay of several days, plaintiff shut off the flow of gas by turning with a wrench the stopcock on the cellar supply line, following, so he said, printed instructions on the water heater to "Turn off gas at the meter first." When they returned home on October 6, at about 4:25 P.M., plaintiff first switched on the oil burner and then applied the self-same wrench to the stopcock in an endeavor to restore the gas supply, but on the turn the stopcock "broke off" and there was a breach in the gas line which plaintiff could not close. Defendant was given immediate notice of the emergency by telephone, and there was assurance of prompt protective measures. The explosion occurred before the arrival of defendant's emergency crew. The evidence is in conflict as to the time intervening between the notice to defendant and the explosion. Of this, more hereafter.
Plaintiff purchased the premises in December 1945, and entered into possession in April 1946. Gas service to the dwelling house had been provided by defendant for more than 20 years, by a medium pressure main in the street through an inch and a half pipe to the house and a three-quarter-inch pipe into the meter and thence into the house piping, controlled by the stopcock placed near the meter. Defendant made the service connection for plaintiff on March 29, 1946. In the application for the service and the necessary meter connection, plaintiff agreed "to use same in accordance with authorized Rate Schedules on file." Thereafter, there was a continuous supply of gas "without complaint" until the mishap at issue; and during the intervening period plaintiff, so he testified, on three occasions shut off and restored the gas flow without incident by the very means employed on the occasion in question when the valve "blew out." Plaintiff said that in each instance the wrench "turned freely and easily." But defendant insists
that "shiny marks" found on the valve itself indicated the application of undue force.
A witness of special experience in the field, Forstall, voiced the opinion that the escaped gas was ignited by a spark from the relay switch on the refrigerator. There was no evidence contra. And he testified that the stopcock in question "is not the type used by the well-regulated companies with which I am acquainted." Again, he said he was "familiar with the kind of equipment" used by well-regulated gas utility companies; "Whether it is standard or not, I don't know, but it is the kind that is used by the well-regulated companies," -- a "type in which the core is made solid and then the opening drilled through or else the opening is cast in that it doesn't leave the core with just a thin wall. The core has a heavier wall than the wall on that particular cock." The witness continued:
"Q. And then I ask you, is this stopcock of that kind? And I refer to the stopcock on Exhibits P-9 and P-8? A. It is not. Q. And has it ever been? A. I never have come across it in any of my work. Q. And that takes you how far back, Mr. Forstall? A. It takes me back to 1890. Q. Did it meet the standard of well-regulated companies in 1931? A. No, I ...