Price, Haneman and Schettino. The opinion of the court was delivered by Schettino, J.A.D.
Defendant appeals from a final judgment entered on a jury's verdicts and from an order denying a new trial by the County Court. Defendant asserts as errors the trial court's refusal to grant its motions for judgment which were made at the close of plaintiffs' case and of the entire case, and also the trial court's refusal to set aside the judgment entered upon the verdicts on the grounds that the verdicts were against the weight of the evidence and were the result of mistake, partiality, prejudice or passion.
This is a personal injury case involving an infant plaintiff. Defendant-appellant's manufacturing plant is located adjacent to a public playground. The plant property is surrounded by a heavy steel wire mesh fence of the cyclone type which is seven or eight feet high. There is a triangular-shaped hole in the base of the cyclone fence about four feet high and three feet long. It is large enough to admit the passage of an adult. The hole has been used for some time as a means of ingress and egress from the premises of defendant by its employees and as a short cut by said employees and by strangers.
The playground was established approximately five years before the incident. Prior to that time, the situs of the playground was an open field in which children played. Although the testimony is conflicting, the jury could have found that the hole was in existence before the playground was built. A baseball or softball diamond was constructed on the playground close by the hole. The hole has been often used over a period of years by children as a means of ingress and egress to the premises of defendant when it was necessary to retrieve baseballs which had been batted over the fence. Such use was made by children many times during the course of baseball games which occurred almost every day. Testimony was submitted that children from the playground also went on to defendant's buildings and were chased by defendant's
employees only when they climbed over boxes, tables and other things. At times children would take defendant's waste materials from its premises and would use them for stuffing their baseball gloves.
The incident complained of by plaintiffs allegedly occurred on Monday, April 30, 1956. Defendant's witness testified that usually on Saturdays its employees used a solution of 50% nitric acid to cleanse certain of its equipment. This work was done on a platform located at the front of defendant's plant and adjacent to the playground. On the day of the alleged accident to the infant-plaintiff, an earthenware crock containing a 50% solution of nitric acid was standing upon the platform in the location described above.
Defendant admits that on Monday, April 30, 1956, one of its employees saw the infant plaintiff crying on its premises, that the boy had come in contact with a vat of acid or other material which was open and on its premises, that the vat contained a 50% solution of nitric acid, that there was a hole in the fence, which hole had been in existence to defendant's knowledge for from four to six months prior to the alleged accident and that "There is a hole in fence where the injured boy may have crawled through unseen."
At the time of the incident the infant was less than three years of age, having been born in June, 1953. Plaintiffs' testimony shows that on April 30, 1956 the infant had left his home for the playground at about 9:30 A.M. in the company of two other children; that he was observed on defendant's premises and was crying at the time; that he returned home at about 10:15 to 10:30 A.M., and while crying and holding his hands said to his mother, "Playground, poison, fence, poison"; that plaintiff-mother noticed an oil-like, yellow brown substance over both his hands; that she washed his hands and applied vaseline on them and thereafter took the boy to a doctor.
From the testimony the jury could have found that the boy had gained access to the defendant's premises through the above-described hole in the fence, walked an estimated 300 feet along the fence separating defendant's building and
the playground to the corner of the building which had the open platform upon which rested the vat; that, when he arrived at the corner of the building, he could have turned right along its front and proceeded to the other end of the open platform, thence walked up a board ramp to the platform and to the vat, and that he then put his hand or hands on and into the vat of nitric acid. Although oral testimony indicates the distance walked along the ground in front of the platform was approximately 125 feet, a photograph exhibit in evidence indicates that the distance is considerably less.
On the initial visit to the doctor he gave the boy an injection of demerol and immersed him in a tub for one hour. He was then taken to a hospital where he remained for eight days and where his arm was kept bandaged for the first two days and thereafter it was left open and some powder was applied. He was then returned home and while at home, for a two-month period, the mother had to perform an operation of about 15 or 20 minutes, twice a day. It consisted of constant rubbing of the arm with green soap and gauze "until it bled, until the dark stuff fell off" and that she then placed surgical powder and lanolin on the arm. The boy cried when she performed this function. Thereafter the boy was taken to another hospital where he remained about 28 days under the care of a doctor. When the infant returned home, his hand had to be kept bandaged for a period of nine months whenever he went outside because exposure to the sun would break down the growing tissue. While at home the boy was treated by four doctors. As a result of his contact with the nitric acid the child suffered a circumferential burn of the third degree on his right hand. The burn was around the entire wrist part of the forearm, part of the wrist and part of the back of the hand with exuberant granulations which were thick, spongy, and presented upon examination open, raw surfaces around the entire hand.
A specialist in the field of plastic surgery testified that it was necessary to resurface the raw surfaces by means of a skin graft, that the hand was prepared for grafting by continuous
cold saline solutions for about seven days to make it surgically clean. Thereafter, skin was cut from the boy's thigh by use of a machine and the graft applied to the hand by the use of 75 or 100 stitches. The leg did not heal well.
In order to immobilize the graft, a cast was applied from the tip of the fingers to the arm. Ten days later the cast was removed and it was discovered that 95% of the graft had taken. About two months later the doctor found that the scar at the junction of the graft and the donor site on the leg had thickened, and it was therefore necessary to have X-ray and radium treatments to help keep the scars from thickening. When the cast was removed and the boy's wrist was moved, the doctor said: "it hurt like mad." The boy had to have physiotherapy for the muscle motion of his hand, which motion was considerably regained. This doctor also pointed out certain injuries to the forehead and to the nose. He stated that nothing could be done about them.
This expert also testified that the scarring on the leg, the hand, the forehead and the nose is permanent and that the injured hand is thinner because there was a loss of tissue by the acid and the tissue will never be regained. The wrist is also thinner. Additionally, that there will always be a difference between the color of the grafted skin and the skin around it because the pigment is lost. It was his opinion that future surgery on the boy would not be advisable because the boy has a keloidal tendency and that therefore it would be dangerous to reoperate.
On cross-examination, defendant's attorney conducted a squeezing experiment on the hand. The doctor admitted that there was little difference in gripping power between the two hands. But the doctor noted that this was a test of hand power and not wrist power, since the right wrist is thinner than the left and will never grow to the same size as the normal wrist.
It might be noted that the defendant offered no medical testimony to refute the assertions with respect to the injuries and the effects thereof.
Appellant contends that the trial court erred (a) in applying the doctrine of Strang v. South Jersey Broadcasting Co. , 9 N.J. 38 (1952), to the facts of this case; (b) in denying its motions for judgment in its favor, and (c) in refusing to set aside the verdicts as excessive or to reduce them.
Appellant insists that the trial judge unlawfully, unreasonably, erroneously and arbitrarily extended the social trend outlined in the Strang case; that he made an assumption upon an assumption and told the jury it was legal for it to do likewise; that plaintiffs proved nothing which could lead the trial judge to conclude that there was an attraction for this infant of about three years of age when the accident occurred; and that thereby the facts herein are clearly distinguishable from the facts in the Strang case, and that the trial court's reliance on the Strang case as controlling constitutes reversible error.
Appellant points out that the trial judge throughout the trial both on the motions for dismissal and also in his charge to the jury, relied on the following cases: Cloyes v. Delaware Township , 23 N.J. 324 (1957), affirming 41 N.J. Super. 27 (App. Div. 1956); Harris v. Mentes-Williams Co., Inc. , 11 N.J. 559 (1953); Strang v. South Jersey Broadcasting Co. , 9 N.J. 38 (1952); Diglio v. Jersey Central Power & Light Co. , 39 N.J. Super. 140 (App. Div. 1956); and Hoff v. Natural Refining Products Co. , 38 N.J. Super. 222 (App. Div. 1955). Appellant conceived that the law in the above cases seemed to be settled with respect to those cases.
But it strongly denied that the law of those cases is applicable to the facts before us. It argued that there are generally three fact categories involved. It ...