For reversal -- Chief Justice Weintraub, and Justices Heher, Burling and Jacobs. For affirmance -- Justice Wachenfeld. The opinion of the court was delivered by Jacobs, J. Wachenfeld, J. (dissenting).
[25 NJ Page 361] The Appellate Division affirmed the trial court's judgment of dismissal at the close of the plaintiff's
case. Martin v. Bengue, Inc., 44 N.J. Super. 429 (App. Div. 1957). We granted certification under R.R. 1:10-2.
On February 4, 1953 the plaintiff suffered severe injuries. He claims that his injuries were the result of the defendants' negligence in failing to warn him, as a user of their ointment "Ben-Gay," as to the flammability of the vapors which it emitted. In support of his claim he introduced lay and expert testimony which, he contends, was legally sufficient to withstand the defendants' motion for dismissal and call for their defensive testimony. He stresses the principle that, notwithstanding doubts as to credibility and adequacy, the trial court was obliged, in ruling on the motion, to accept the plaintiff's portrayal as evidenced by the most favorable testimony introduced on his behalf along with all favorable inferences which the jury might properly draw therefrom. See O'Donnell v. Asplundh Tree Expert Co., 13 N.J. 319, 328 (1953); Nierman v. Casino Arena Attractions, Inc., 46 N.J. Super. 566, 569 (App. Div. 1957). That portrayal may fairly be summarized as follows:
The plaintiff had a heavy cold and had been home for several days. About twice each day his wife had rubbed a medium amount of Ben-Gay on his chest, shoulders, and neck substantially in accordance with the directions for its use. On the morning of February 4, after a customary application, the plaintiff seated himself in a living room chair. He was then dressed in the same cotton pajamas which he had been wearing for several days and his pajama top had become rather greasy from its contact with the Ben-Gay. While listening to the radio and talking to his wife who was in the kitchen, he attempted to light a cigarette. After striking the match he suddenly realized that its head had fallen off and that the lower part of his pajama top was burning. Still seated, he unsuccessfully tried to pat the fire out. He then jumped up still continuing his patting motion. The fire spread rapidly across the portions of his body which had been covered with Ben-Gay. In the plaintiff's language "it like exploded, you might say." He immediately called to his wife who found him
"completely enveloped in flames." She tore off the pajama top, applied a home remedy for his burns, called the doctor, and took him to the hospital where he remained for over a month. He suffered very severe burns, particularly about his "chest, shoulder, face and ears."
The plaintiff started to use Ben-Gay many years ago and testified that he had probably then read its accompanying literature. Similarly his wife testified that she was "an old user of Ben-Gay," had read the legend on the package, was familiar with the directions which accompanied it, and found "nothing that said it was dangerous to use." The tube which contained the Ben-Gay and the directions which accompanied it contained nothing whatever as to flammability. The directions did contemplate that the pajama top would be worn after the ointment had been applied and the plaintiff's position is that the vapors emitted by the Ben-Gay, when confined between the pajama top and the body, were flammable. In support he introduced testimony by Messrs. Bechtoldt and Kanengieser, both graduate chemists. Mr. Bechtoldt had analyzed Ben-Gay and testified that it "was broken down into fifty-eight and a fraction percent of nonvolatile, and approximately thirty-five percent volatile, and eight percent of water." The volatile matter which vaporized at room temperature was methyl salicylate and menthol and the non-volatile matter was petrolatum and lanolin. Mr. Bechtoldt had examined the pajama trousers which the plaintiff had worn on the morning he was burned and found that it was composed of cotton fibers without any synthetics. When a flame was applied it "burned with moderate intensity," as does cotton material generally. He had also tested the material with a mixture of methyl salicylate and menthol but his answer that he "found that the material burned with increased --" was interrupted and remained unfinished when objection to the question was sustained by the trial court. Later the witness answered in the affirmative when the trial court asked him whether vaporization of the Ben-Gay would "cause a flame, which has already been ignited on a pajama coat such as you have examined, and
material such as you have examined, to burn quicker." He expressed the opinion that there was a causal relationship between the vapors which the Ben-Gay had emitted and the plaintiff's injuries, but was unable to say "to what degree" the plaintiff would have been burned if he had no Ben-Gay on him.
Mr. Kanengieser testified that if subjected to sufficient heat Ben-Gay "burns away practically completely." He acknowledged that the touching of a lighted match to a quantity of Ben-Gay placed in the open palm of the hand would probably not cause the Ben-Gay to burn because it would not "make the vapors hot enough." But he differentiated that situation as not involving confined vapors between the body and the pajama top, but as involving vapors mixed with air in the entire room. He expressed the opinion that in the instant matter there was a causal relationship between the Ben-Gay and the ensuing fire; he stated that "the probabilities are that the major portion of the burning, of the rapid spread, was done by the flammable vapors there first, and the spread of the fire in the cloth continued more slowly. But the very rapid thing was the vapors. It's what is known as a flash fire." He testified as to an experiment which he had conducted out of the courtroom. He had spread some Ben-Gay on an asbestos pad and loosely placed a piece of the plaintiff's pajama trousers on top of it. He allowed it to remain there for 30 minutes and then hung the piece of pajama overnight. On the following day he spread some more Ben-Gay on an asbestos board, placed the piece of pajama loosely on it and later ignited the pajama at one end. He picked up "one end of the pajama and dropped it down again, as a person might if he were moving about." At first there was a small flame which charred the cotton and then suddenly there was a "quick burning up." He expressed the opinion that "what happened was that instead of just the cloth burning, the vapors that were underneath the cloth, between the cloth and the asbestos, reached the point at which they were ignited" and then there was "a flash fire underneath from the vapors that were there." In response
to the trial court's inquiry as to what would have happened if the plaintiff had used Vaseline (petroleum jelly) instead of Ben-Gay, the witness testified that "he could hit it out with his hands"; in elaboration he added, "the flash fire would not have occurred. It was not the lanolin, the fat that caused the flash fire. He could have, by hitting it, probably put it out, because it requires a much higher temperature to vaporize the Vaseline. In fact methyl salicylate and menthol vaporize at this room temperature. So that without a fire, the vapors are there to begin with. What happened is that the burning pajamas made the vapors reach a point at which they ignited." Further on in his testimony he expressed the view that "Vaseline, cold cream, and things of that sort, would not have added the great possibility of the spread of the fire in the way in which these volatile substances did."
The testimony indicated that the methyl salicylate in Ben-Gay has a flash point (produces a puff of flame, not a fire) at about 225 degrees F and that its vapors burn continuously at about 235 degrees F. It also indicated that the temperature of a burning match and burning cotton is between 1200 degrees and 2000 degrees F. From this, coupled with the remaining evidence in the record, the Appellate Division found that it could reasonably be inferred that Ben-Gay vapors would burn at about 235 degrees F "only when the oxygen in the air is limited in quantity, as where it is confined by some article, such as a pajama coat, so as to form with the vapors a combustible mixture." It then determined, as a matter of law, that the chance of injury was "so remote and so utterly unexpectable that a manufacturer of ordinary prudence would have disregarded it." 44 N.J. Super. at page 433. The plaintiff urges that this determination was erroneous and that his proofs sufficiently presented a factual issue for the jury's ...