Goldmann, Sullivan and Burton. The opinion of the court was delivered by Burton, J.s.c. (temporarily assigned). Goldmann, J., concurs in the result.
In this appeal the plaintiff contends that the court committed error in granting defendant's motion for judgment under R.R. 4:51, at the conclusion of the case, and thereby deprived the plaintiff of her right to have the matters in issue determined by a jury.
Sophie Mergel, as administratrix ad prosequendum of the estate of Albert Mergel, deceased, brought this action against the defendant Colgate-Palmolive-Peet Co. to recover loss sustained by her, as next of kin, as a result of the death of her husband on July 30, 1951. Plaintiff, as surviving widow, had previously been awarded workmen's compensation benefits for the death of her husband which occurred while he was engaged in working for his employer, New Jersey Conveyors Corporation, an independent contractor, on the premises of the present defendant.
The decedent was a millwright. Commencing on July 23, 1951 he was engaged in the installing of a conveyor system which was designed to run from the second floor to the first floor in a part of the premises of the defendant known as the "Fab" building, in Jersey City. On the morning of July 30, 1951 the decedent had been working near the ceiling in the building. Around 10:30 A.M. he descended to the floor level complaining of illness. He was permitted to leave work to go home, but was later found at the Hudson Tube Station, from whence he was taken to a hospital where he died at 1:30 P.M.
The allegations of negligence upon which the plaintiff based her case were, in substance, that the defendant piled certain pallets and cartons in and around where the decedent was performing his work so that he was boxed into a space about ten feet square, thus creating a condition which caused the decedent to stretch and strain unduly and to overreach for a distance of about three feet in order to do the work required of him; that the place where decedent was required to do said work was unduly hot, the temperature therein averaging 80 to 85 degrees Fahrenheit, and that defendant failed to provide adequate ventilation to carry off such heat and thus to make the premises a safe place within which to work. Plaintiff contends that the heat, combined with the boxing-in, precipitated a heart attack that culminated in the death of the decedent.
One of the plaintiff's witnesses was George Malgady, brother-in-law of the decedent, who had worked on the job with the decedent from July 23 until July 30. He testified that on the morning of the 30th they started work at 8 o'clock, and that at such time the defendant had cleared a space approximately 15 feet square; that they erected their scaffolding in such area, but that within an hour the cartons or cases were moved into their working space in such a fashion that they were required to get up on top of the cases and to reach over them to do their work. He stated that substantially the same conditions prevailed on each of the previous days they worked on defendant's premises. This witness recalled that on the day in question the temperature in the place where they worked was "80 to 85, possibly 90 degrees." He was uncertain whether there were any blowers or ventilators in the room; however, there were at least six doors, and three or four were open. The brother-in-law testified that the decedent came down the ladder at about 10:30 A.M., that he complained that he did not feel well, and he was sent home.
Edward M. Leidy, another millwright, testified on behalf of the plaintiff. He stated that he had been working about 15 feet from the decedent on the morning in question, that
he saw the decedent reaching over boxes to drill holes in the ceiling and later observed him coming down the ladder, describing him as having been "all in."
Dr. Saul Lieb, plaintiff's medical expert, diagnosed the cause of death as coronary occlusion, which was caused by two factors: (1) decedent was subjected to an unusual form of exertion in doing his work; (2) he had to do the work under conditions of very great heat. He concluded that both circumstances combined to produce a burden upon the heart vessels, which was more than they could bear. On cross-examination he admitted that among people of the age of 53 probably 60-65% have arteriosclerosis; that wherever there is a coronary occlusion there must be a preexisting coronary sclerosis; that the lack of ventilation and the manner in which the boxes had been piled had nothing to do with his diagnosis of coronary occlusion, but that he believed the unusual exertion, to which he had referred, was induced by the position in which the decedent was required to do his work. He acknowledged that he was not informed as to the nature of the millwright's work.
William Frank, an engineer and witness for defendant, testified he was familiar with the contract and work done by the New Jersey Conveyors Company; that there were six doors, six windows, four of which had ventilators, and that an area for installing was cleared 8 feet wide and 40 feet long.
In Township of Parsippany-Troy Hills, Morris County, v. Bowman , 3 N.J. 97, at page 109 (1949), Justice Heher ...