[60 NJSuper Page 425] Respondent Newark Industrial Spraying, Inc., has appealed from an adverse determination of law centering around an alleged "skylarking" incident involving petitioner Angel M. Diaz and another employee on
November 20, 1957. The incident occurred on respondent's premises during the normal working hours, but respondent's version of the mishap sharply differs from that of the petitioner.
Although for the purposes of this appeal the factual determination as made by the Deputy Director below is more favorable to the respondent and he is not urging a new determination of the facts in this court, petitioner contends that this court should make a determination more in its favor which would avoid the necessity of considering the legal issue to any extent. Consequently, this court as its duty will apply a new mind to the evidence and make an independent determination of the factual issues.
The hearing below took place on December 17, 1958, February 18, 1959 and August 6, 1959. The first two days were devoted to testimony as to the circumstances surrounding the accident, after which the Deputy Director requested that briefs be submitted to assist him in his deliberations. After the Deputy Director's findings were made known, the case was assigned to another Deputy Director for the taking of testimony and for a finding as to the extent of petitioner's disability on the final hearing date of August 6, 1959.
With regard to the circumstances surrounding the accident, petitioner presented himself and two other witnesses who were at the scene.
Petitioner, through an interpreter, testified that he had been employed as a general laborer for 19 months prior to the incident, and on the day of the accident he had been cleaning some "cabinets" or "frames" with lacquer thinner. He stated that his clothes had become saturated with the thinner as a result of such work and subsequently he had been put to work washing the frames with a water hose near a tank which had an open flame beneath it, and that his clothes were ignited, causing extensive burns to his body. Petitioner denied having ever squirted one of his co-workers, named Frank F. Waters, or that Waters had thrown lacquer thinner on him as a reprisal for the alleged squirting.
The remainder of petitioner's case consisted of the testimony of two of his coemployees, Abraham Bettencourt and Ernesto Fuentes, who were working in the same vicinity on the day of the accident. However, the probative value of their testimony even with respect to the absence of any squirting incident is negligible in view of the fact that they did not personally observe petitioner's actions immediately before his clothing burst into flames.
Respondent's first witness was Frank F. Waters, another employee who had been working near petitioner at the time of the accident. Waters testified that he had just set some cans containing lacquer thinner down on the floor, and while in a stooped position seven or eight feet away and with his back to petitioner, he felt some water strike his leg. Assuming that he had been sprayed with the hose with which petitioner had been working, Waters turned around and apparently without any ill will said in English, "I will give you a bath, too." Waters further testified that he resumed his original position and was washing his hands when he was again doused with water from the waist down. At this point Waters said that he then grabbed what he thought was a water can and threw its contents at petitioner, whose back was then turned to Waters. The liquid, which in reality was lacquer thinner, struck petitioner, and Waters started to walk away. At this time, according to Waters, both he and petitioner were either smiling or laughing. Waters said he then "heard a puff" and saw that petitioner was on fire.
When pressed as to whether he knew in fact that the water which had struck him on both occasions had come from the hose petitioner was using, Waters said that he did not actually observe petitioner spray him and that he could not say for sure from where the water had actually come. He also admitted that the hose connection at the spigot approximately ten feet away occasionally leaked and sprayed water upwards, but he hadn't seen it happen that day. In addition, Waters indicated that he could not say whether
the petitioner understood the remarks he had made to him at the time of the accident, and that he was in the habit of using "sign language" in communicating with him.
The testimony of respondent's second witness, Joseph Evans, from a quantitative standpoint is quite lengthy due to many unresponsive answers by the witness stemming from his failure to understand counsel's questions both on direct and cross-examination. Suffice it to say, however, that Evans testified that petitioner did squirt Waters with the hose and that Waters in retaliation threw the liquid contents of a can at the petitioner and that petitioner's clothing was ignited by an open flame under a nearby tank.
Respondent's third and final witness on the issue of liability was Patrick J. Frain, secretary of the respondent. Frain testified that it was his duty to make out reports of compensation claims for the respondent company, and as far as he knew there had been no compensation paid to the preceding witness Evans and no claim for compensation had been made for an injury he sustained while pulling petitioner's burning jacket off at the time of the accident.
Advanced on this evidence are three theories of what actually transpired. First, petitioner's clothing became wet with lacquer thinner as the result of some work he himself had been doing just prior to the accident; second, petitioner was the innocent recipient of a splashing of thinner by Waters without instigation on the part of petitioner; and third, petitioner instigated the ...