Clapp, Jayne and Francis. The opinion of the court was delivered by Jayne, J.A.D.
During his lunch hour at midday on May 28, 1951 the plaintiff, a young man of 33 years of age, became the victim of a most unfortunate and exceedingly injurious and painful mishap. In the pursuit of our present appellate function we must accredit his testimonial narrative of the conditions and circumstances accompanying and surrounding the misfortune.
Adjacent to the Delaware River in the village of Milford, Hunterdon County, the defendant has a tract of land upon which it maintains its manufacturing plant. Approximately one-quarter of a mile southerly from its factory it has during several years utilized a portion of a large open area contiguous
to the bank of the river as a site for the surface incineration of the debris and waste products of its manufactory. The useless materials were currently transported to the location by means of motor trucks and there ignited by its servants.
The area of which we speak is situate between the river and Frenchtown Road, along the westerly side of which highway extends a wire fence of the defendant with a gate through which the trucks enter and then traverse a winding roadway on the property to the dumping locality neighboring the river bank.
As a result of this practice, the so-called "dump" had reached a length and breadth of some 300 feet, and its surface an elevation of 10 to 15 feet above the level of the river at its adjacent bank. The sections which were thought to be burned out were covered by "fly ash," coal ash, from the mill's boilers.
The plaintiff was one of the many employees of the defendant regularly engaged in service in the chemical mix department in the defendant's factory. His lunch hour recess from work was from 12 noon until 1 P.M. He customarily supplied his own box of lunch. The atmosphere in the factory and in its immediate vicinity was permeated by a gaseous aroma of chlorine, said he, and when the weather was propitious it frequently became his recreational convenience during the recess hour to take his car containing his lunch and fishing rod and bait, travel to and through the company's land to which reference has been made, to the shore of the river where food would to him be more palatable and fishing more refreshing.
Such was his chosen pursuit during the noon hour of May 28, 1951. He had motored from the factory southerly on Frenchtown Road, entered the open gate and parked his vehicle near the dumping area whence he proceeded on foot to cross a section of the dump which from his observations had apparently burned out and its ash surface solidified. He had arrived close to the river's edge when the surface of the dump caved in beneath him, submerging his body up to the waist in a pit of unextinguished hot embers. He sustained
serious bodily injuries. His resultant medical expenses and wage losses are said to approximate $12,000.
To this summary of the characteristic aspects of the mishap should be added the supplementary information that the plaintiff, conceiving that the defendant was legally accountable to him for the cause and harmful consequences of the disaster, petitioned the appropriate administrative bureau for the allowance of the statutory workmen's compensation. The Deputy Director of the Division of Workmen's Compensation resolved that in the factual circumstances disclosed by the evidence, the accident did not arise out of or in the course of the petitioner's employment and dismissed the petition. No appeal was taken from that determination.
The present action was thereupon instituted and prosecuted in the Law Division of the Superior Court, Warren County, in the endeavor to establish the common-law liability of the defendant for the alleged negligent causation of the mishap and its injurious consequences to the plaintiff as a member of the public.
At the conclusion of the introduction of the testimony by and on behalf of both parties, the court in response to a motion made by the defendant's attorney granted final judgment in favor of the defendant, which was entered on March 19, 1956 and from which the plaintiff now appeals.
A feature of the appeal relates to the effectiveness in the present action of the fact findings of the deputy director in the proceedings conducted in the Workmen's Compensation Bureau. Following the dismissal of the compensation claim, counsel for the company applied to the court to augment the pretrial order in the present action to embody an assertion of the defenses that (1) "The judgment of the Workmen's Compensation Bureau as to plaintiff's relationship to defendant and his status upon the lands of the defendant at the time of the accident is res adjudicata of those issues in this case"; (2) "that plaintiff's right of ...