Clapp, Jayne and Francis. The opinion of the court was delivered by Jayne, J.A.D.
The factual circumstances accompanying and surrounding the occurrence of the explosion of illuminating gas which demolished the residence of the plaintiff at 1002 Broadway in West Long Branch on the afternoon of October 6, 1950 are fully unfolded in previous decisions reported in 20 N.J. Super. 296 (App. Div. 1952), and in 12 N.J. 251 (1953). We are here concerned with features of the second trial which was likewise concluded by a jury verdict in favor of the plaintiff.
The answers to some of the points projected by the defendant in the present appeal appear to be implicit in the opinion rendered by the Supreme Court in the consideration of the former trial. In this appellate review of the succeeding trial, our attention primarily converges on the propriety of certain passages in the court's instructions to the jury.
In undertaking to resolve the liability of the defendant in a case of this class, it was of supreme importance that the jury should definitely comprehend the essential nature and measurement of the legal duty resting upon the defendant applicable to the controversial issues of the case.
The trial judge included the following requests to charge in his instructions to the jury. We supply the accentuation.
"4. Corporations manufacturing and distributing gas must make reasonable and prompt inspection of its appliances. The exercise of due care requires such reasonable and thorough inspection as will detect defects when occurring. The defendant has offered proof that it was the owner of the appliances. If you find that the defendant failed to exercise due care in the exercise of reasonable and
thorough inspection of its appliances and that failure proximately contributed to the explosion, then the defendant is liable.
5. It is the duty of the defendant, a corporation, to use reasonable care to maintain the appliances used for the transmission of gas in proper condition and this involves reasonable care in inspection for the discovery of possible impairment or defects."
The dimensions of the defendant's duty are distinctly expounded, for example, in the decision in Beck v. Monmouth Lumber Co. , 137 N.J.L. 268, 272 (E. & A. 1948). Some other decisions of relevancy are: Van Winkle v. American Steam Boiler Co. , 52 N.J.L. 240 (Sup. Ct. 1890); Anderson v. Jersey City Electric Light Co. , 63 N.J.L. 387 (Sup. Ct. 1899), affirmed 64 N.J.L. 664 (E. & A. 1900); Heyer v. Jersey Central Power, &c., Co. , 106 N.J.L. 211 (E. & A. 1929); Adams v. Atlantic City Electric Co. , 120 N.J.L. 357, 363 (E. & A. 1938).
Considered apart from application to any particular set of circumstances, the care which the defendant was obligated by law to exercise in such an undertaking was of that degree commensurate with the risks and dangers reasonably to be anticipated and foreseen in the use and maintenance of a highly destructive agency and a measure of care which comprehends a circumspection, and a prevision pursued with due regard to reasonably probable contingencies.
Words are the materials with which ideas and mental concepts are constructed. The instructions here impugned, if literally interpreted, imparted to the jury the conception of a duty obliging the defendant to make such punctual and thorough, that is, complete and consummate, inspections "as will detect" not only defects reasonably to be apprehended, but also all possible defects and impairments "when occurring." Such as the possible hammering of the stopcock by the plaintiff?
Superimposed upon this instruction was the court's declaration that "the exercise of due care requires " inspections of such efficiency. Normally it is the exclusive function of the jury to determine what the legally applicable degree ...