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Araujo v. New Jersey Natural Gas Co.

Decided: June 21, 1960.

FRANK ARAUJO, JR., AND MYRTLE ARAUJO, HIS WIFE, PLAINTIFFS-APPELLANTS,
v.
NEW JERSEY NATURAL GAS COMPANY, ETC., ET AL., DEFENDANTS-RESPONDENTS



Conford, Freund and Haneman. The opinion of the court was delivered by Freund, J.A.D.

Freund

Plaintiffs, Frank Araujo, Jr. and his wife Myrtle, instituted this negligence action in the Law Division to recover for property damage and personal injuries sustained on February 21, 1958 when their home at 27 Robert Street, Rockaway Township, was completely destroyed by a gas explosion and resulting fire. The defendants are the New Jersey Natural Gas Company, which supplied gas to the home for heating and cooking purposes, and the Gray Supply Company, which installed the main gas line or piping from the curb to the gas meter in the cellar at the time of the home's construction, pursuant to a contract with the Gas Company. The appeal is taken from the granting of defendants' motion for dismissal at the conclusion of plaintiffs' case, based upon a ruling by the trial judge that

"[T]here is nothing in the evidence here that would permit the jury to make a finding of negligence on the part of either of the defendants as to the possible cause of the explosion."

Plaintiffs contracted to buy their home from the developer in June 1955 before it was built, visited the site on various occasions during its construction, and took possession in February 1956 shortly after its completion. Sometime prior to their moving in, the Gray Supply Company, under contract with the Gas Company dated March 1, 1955, installed a service line to carry the flow of gas into the house. On the day of the explosion this pipe was 33 inches below ground level. Five days thereafter a trench was dug in the ground to permit examination of the pipe. Investigation revealed that the pipe had a break at a point about six feet outside the cellar wall. There was a hole in it 1/8 of an inch wide and 3/8 of an inch long. As the pipe lay in the trench,

it was bent or crooked in the vicinity of the hole, and at the point of the rupture the pipe was flattened and no longer round. When it was picked up by the investigators, the pipe split into two separate pieces at the point of the break.

The case was not brought on the theory of res ipsa loquitur , counsel explaining to the trial judge on the motion to dismiss that "these pipes were not in * * * exclusive control" of the defendants. The complaint rather charged the defendants with negligence specifically in (a) installing the pipe; (b) failing to inspect and maintain it so as to prevent the escape of gas; and (c) failure to use or require the use of pipes of sufficient strength "to withstand * * * the normal wear and tear of installation."

Plaintiffs' case consisted of the testimony of five witnesses, Mr. and Mrs. Araujo, a neighbor, a police officer, and the chief of the local volunteer fire department. None was offered as having any experience in relation to the types and qualities of gas pipes, the nature of pipes in general, or the installation thereof, and none was permitted to express an opinion that the pipe in question was inherently defective or negligently installed or that the explosion was caused by the seepage of gas from the hole therein. The only expert testimony adduced was that of the fire chief who, over objection, was ruled qualified "to discuss fires." There was, then, no testimony as to the condition of the pipe when it was installed and none as to what that condition was likely to have been in view of the later-discovered defects. The evidence was substantially as follows.

February 21, 1956 was an "exceptionally cold" day, and there was ice and snow on the ground; it was colder than the day the pipe was dug up when the temperature was 45 degrees and when the ground was frozen to a depth of 18 to 21 inches. At about 3:40 P.M., Mrs. Araujo went to the front door of the home to await the bus that would bring plaintiffs' son and daughter from school. Mr. Araujo was away at the time. When she opened the front door,

Mrs. Araujo smelled an odor which she could not identify. The boy also smelled it as he came down the walk. The children entered the home and within minutes two friends were at the side door ringing the bell. Mrs. Araujo again smelled the odor when she opened this door. At this point she telephoned the next-door neighbor, Mr. Joseph Zavoda. He testified that "outside in front of her home" he smelled the kind of gas he used in his home, but that when he went through the Araujo home, including the cellar, there was no odor indoors. He returned to his home, and plaintiff telephoned the gas company. The line was busy. She redialed "a couple of times," finally receiving a "clear signal," but before the call was answered there was an "awful boom * * * a terrific noise." Plaintiff could not recall precisely what she saw, but before she saw anything there "was a bluish-gray look in front" of her.

Mr. Zavoda came back to the house and told plaintiff not to try to leave through the front door. He entered to assist her in getting the children out through the area where the side door had been before the explosion. The only fire that was observed while they were in the house was in a hall closet. As Mr. Zavoda "grabbed one of the coats," he saw "a little flame on top of the shelf, it was just burning in the air * * *." After they "got around to the front of the house," fire was observed coming out of the second-story window. Apparently no one in the family but Mrs. Araujo suffered personal injury. The house was completely destroyed, except for the foundation.

The fire chief testified that there was burning in the cellar and that the fire was "coming from the location of the gas meter." When the fire was extinguished, he and a water department employee went into the cellar to turn off the water line. An employee of the Natural Gas Company was on the cellar steps. Because they "could hear gas escaping," this employee told them to shut off an upper valve. This did not stop the gas leakage. They attempted to turn off a second valve between the regulator and the

foundation, but "it was mounted so close to the foundation of the house" that the same wrench that had turned off the upper ...


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