Clapp, Jayne and Francis. The opinion of the court was delivered by Francis, J.A.D.
We are asked to review the legal propriety of the action of the County Court in granting defendants' motion for judgment at the close of the trial of these gas asphyxiation negligence cases. Alleged errors in the rejection of certain evidence are urged also as a basis for reversal.
Defendants Spiniello Construction Co. and Nesto Construction Co. entered into a joint contract with the City of Newark under which they agreed to clean and reline certain water mains in the City of Newark and the Town of Belleville. It is apparent from the agreement that when
a particular section was being worked on, it was taken out of operation as a main. In order to remove the water in such a section a Newark city employee would open blowoff valves which connected the main at intervals along its course with the sewer system. The water would then drain off by gravity.
Obviously it was expected that occasionally water would be pocketed at a point where the force of gravity could not accomplish its removal. In such situations the necessity of pumping was recognized. The contract contains a number of references to the operation. For example:
"S-5. * * * In connection with the work of cleaning and lining to be done under this contract, the City at its own expense shall shut off all valves and cocks to isolate the pipe lines from other distribution mains and house service connections; * * * shall operate main line valves, air valves and blowoff valves to drain the lines to the extent that they will empty by natural outflow by gravity without the use of pumps; * * *.
S-6. * * * and the removal by pumping or otherwise of all water which does not drain by gravity overflow from the pipes after existing blowoffs on the lines have been opened, and of any other water which may enter from any cause other than a leaking valve, shall be by and at the expense of the Contractor."
At the time of the events immediately preceding the unfortunate accident which gave rise to this litigation, defendants' employees had been working in an area where the 30-inch main crosses the Newark-Belleville boundary line. The entire undertaking for both companies, including this particular aspect of it, was in the general supervisory charge of Luke C. Spiniello, the president of Spiniello Construction Company.
Two holes several blocks apart had been cut into the main to enable the men "and a mechanical device" (not described) to enter in the performance of their tasks. One was north of Verona Avenue in Newark and the other at William Street in Belleville.
On March 4 or 5, 1953 a sizeable water pocket was discovered in the main between these two places of ingress and egress. It was nearer the entrance hole on the Newark
side. The pipe took a descending course there and the water had collected at the low point. The pipe turned upward, close to the northerly end of the water and so gravity could not cause it to drain off.
On March 6 at Spiniello's order an employee obtained a gasoline pump, described as a 2 1/2-inch pump, from the warehouse and brought it to the hole on the Newark side. (The 2 1/2-inch dimension relates to the diameter of the intake valve.) While the precise statement does not appear in the testimony, an inescapable inference is that the purpose was to use it to remove the water. Spiniello told the employee to put it inside the 30 inch main and try to start it. He succeeded in getting it about 10 or 15 feet inside but it was too "bulky" and use of the pull rope to put the engine in operation was impossible. So the attempt was abandoned.
Spiniello then telephoned the Homelite Corporation and purchased a 1 1/2-inch gasoline powered pump. After doing so, he sent another employee with a truck to pick it up and deliver it to the entrance hole at William Street on the Belleville side. Pursuant to this direction, the pump was obtained but the record is silent as to whether it was dropped off at the designated place. In this connection it may be noted from the sketch in evidence that the blowoff valve at Mill Street (mentioned above) was fairly close to the northerly end of the water and between it and William Street. Thus the nearest outlet to which the water could be drawn or pumped was this valve leading to the sewer. And some significance may be attached to the assertion of the deputy chief of the Belleville Fire Department that he "knew it was a physical impossibility to pump that water from the other end."
On the same day Spiniello communicated with the Newark engineer and asked for the opening of the blowoff valve. The request was complied with, although the time when it was done in relation to the other events of the day was not made the subject of testimony. But that it was an associated circumstance seems plain.
The factual outline just recited resulted from the oral testimony of witnesses, the contract for the work and certain answers to interrogatories. In addition, at the trial it was shown that the police conducted an investigation in connection with the accident. Spiniello was interviewed and gave a signed affidavit which contained a somewhat more specific reference to the water pocket and the intention and manner of removing it. He said, among other things:
"On Wednesday and Thursday, March 4th and 5th, my men were trying to pump some water out of the pipe at the hole by the railroad track on Mount Prospect Avenue, Newark [the one referred to above as north of Verona Avenue] at which time the lower pocket of the pipe was full of water. Since the men could not pump the water out with the old pump, Friday, March 6, 1953 I sent my man over to Homelite Pump Co., in the morning to purchase a new pump. Sam Sedecino [Sudecemo?], who works for me drove to the Homelite Co., and purchased the 1 1/2" pump. * * *."
The detective who interviewed Spiniello and obtained the information was called as a witness and an effort was made to introduce the affidavit in evidence. Objection thereto was sustained. Spiniello was then put on the stand by the plaintiffs to identify his signature. He did so and also conceded that the contents of the affidavit were true. Again an attempt was made to obtain its admission. The offer was rejected upon the grounds that a post rem statement of an agent not made in the course and scope of his duties is not evidential against his principal and that since Spiniello had been called as a witness, he should first be examined on the subjects covered by the affidavit before it could have probative value for any purpose. The document was marked for identification and the action of the court with respect to it is cited as error. The problem will be discussed hereafter.
On Saturday morning, March 7, two of defendants' workmen, Perez and Crespo, entered the main at the William Street hole. Another employee, Martinez, drove the men there; then he dropped three others off at different work locations. Thereafter he returned to William Street. On
arrival, Spiniello was already on the scene. Martinez went down in the excavation to the pipe entrance and then heard yelling in the pipe. "Crespo was saying to Perez [in Spanish] 'Perez, Perez, in the name of the Mother of God, what's the matter?' * * * [I]n broken English Perez replied, more or less, 'pump' and 'gas.'" He reported that the men were in trouble and Spiniello immediately sought help for them which resulted in the ...