Price, Sullivan and Leonard. The opinion of the court was delivered by Price, S.j.a.d.
[73 NJSuper Page 26] Plaintiffs appeal from a summary judgment (R.R. 4:58-2) in favor of defendants Village of Ridgewood (hereinafter Ridgewood), Irma R. Raymond, executrix of the last will and testament of Robert P. Raymond,
deceased, Mervile Seely, and Harry J. Gerritsen, in two actions under the Wrongful Death Act, N.J.S.A. 2A:31-1 et seq. The cases were consolidated for trial. The motion for summary judgment was considered and resolved on the basis of the pleadings, affidavits and depositions. The issues in the consolidated actions are identical and arise out of an accident in which plaintiffs' decedents were killed.
Anna G. Zanca, general administratrix and administratrix ad prosequendum of the estate of decedent Fred B. Zanca, and Sidd Kravitz, general administrator and administrator ad prosequendum of the estate of decedent Michael A. Lozada, charged Ridgewood with ordinary negligence and also with active wrongdoing and, in addition, named ten individuals as defendants, charging all of the parties defendant with negligence asserted to have been the proximate cause of the aforesaid deaths. The individual defendants were three members of Ridgewood's governing body (B. Franklin Reinauer, II, Robert L. Olson and John W. Hand), its clerk (Wayne T. Mitchell), its engineer (Raymond), assistant engineer (Seely), and inspector (Gerritsen); Gerald Conti, a general contractor operating under a contract with Ridgewood for the construction of a sewer line; Nat Conti, a supervisory employee of Gerald Conti; and Richard Wright, a crane operator employed by Gerald Conti.
The pretrial order dismissed the actions against all defendants, except Ridgewood, its aforesaid employees (Raymond, Seely and Gerritsen), and Nat Conti. Subsequently the summary judgment from which this appeal is taken was entered in favor of Ridgewood and its three employees aforesaid. Still later a voluntary dismissal was taken as to defendant Nat Conti.
In our consideration of the propriety of the aforesaid summary judgment we are required to interpret the proofs in a light most favorable to plaintiffs. All legitimate inferences from the evidence are to be drawn in their favor. Judson v. Peoples Bank & Trust Co. of Westfield , 17 N.J. 67, 75 (1954). So considered, the following facts appear:
At the time of the fatal accident, hereinafter described, which occurred October 3, 1958, Gerald Conti was engaged in laying a sewer line on Linwood Avenue in Ridgewood pursuant to a contract with that municipality. The specifications supplied to the contractor by Ridgewood indicated that a water main owned and operated by the village was located approximately 12 feet from the proposed course of the sewer line. As the sewer work on Linwood Avenue progressed, it became apparent that the water main was considerably less than 12 feet away from the proposed line of the sewer. On occasion, the water main was exposed and observation revealed that it was "heading at an angle that would put it closer" to the "sewer line" rather than farther away. Some of the joints of the water main leaked and, on complaint of the contractor, were caulked by the municipal water department. However, as asserted by Nat Conti, "in many cases [when complaints were made] they [the water department] would never show up."
Gerald Conti directed the attention of Robert Raymond, the municipal engineer, to the problems posed by the water main and requested that the latter order a stoppage of work until the main could be replaced and moved from its then location. Raymond did not accede to this request but instead ordered the commencement of "tight sheeting" on the sides of the excavation. As work continued on the sewer line, the water main and the sewer line became progressively closer to each other. Gerald Conti, sensing a dangerous situation, again complained to Raymond who directed that the center line of the sewer be "moved a couple of feet away from" its originally proposed course. This was done but, according to Conti, the danger persisted and, following additional and intensified complaints by the contractor, Raymond ordered the installation of "bracing underneath the water main * * * and the use of wire supports to keep it from breaking." The bracing was performed under the "direct supervision" of Gerritsen, the inspector. In making the aforesaid complaints the contractor had stressed that
"the existence of this water main, especially with leaking joints, created an extra hazardous condition for the work of" his employees.
Deeming the aforesaid allegedly protective measures taken by the municipality to be inadequate, Gerald Conti still further increased the vigor of his protests to the municipal representatives. These protests with unsatisfactory results were described in his affidavit as follows:
"I was not satisfied that this was adequate protection and told Mr. Raymond. He told me to continue to carry out my contract and got very angry with me when I complained about this hazard.
I asked Mr. Raymond to permit the work to stop until a new water main was installed. This he refused.
I asked Mr. Raymond to install a temporary water line on the surface of the ground so as to divert the water from the main that was encroaching on our sewer. He refused this request.
I telephoned the Village Water Department and after speaking to the switchboard operator I was connected with a man of whom I requested that a shut-off key be provided to us for use in an emergency. I was told by this official of the Village Water Department that no shut-off keys would be released. I repeated this request to various employees of the Village Water Department who appeared on the job and was refused by them.
I do not remember the exact number of conversations that I had with Mr. Raymond wherein I apprised him of the great danger to our personnel at our job created by the aforesaid water main, but I know that it was more than six times and may have been as many as a dozen times. On one occasion about three weeks before October 3, 1958, I even told him that a dangerous accident would happen on this job if something were not done to make it safe. In spite of these requests he refused to permit me to stop the work until it could be made safe.
Mr. Raymond told me that the reason he would not permit me to shut down this job until the water main could be repaired was that, he said, I was already behind on my contract and he was very anxious to tie this sewer line into another sewer line that was being contracted [ sic ] somewhere else in the Village. If I had acted contrary to his direct order not to shut down the job I would have breached my contract with the Village."
The next important event revealed by the proofs is that on or about September 30, 1958 the municipal water department, at the direction of Raymond, took initial steps
to replace the aforesaid water main along Linwood Avenue by delivering new water pipes to the vicinity of the work site. Before the pipes were installed the fatal accident occurred.
The sole eyewitness description of the accident on October 3 is found in the deposition of Nat Conti. He testified that on that day the excavation along Linwood Avenue, running in an "easterly and westerly direction," was "21 feet deep" and "four and a half feet wide" at the scene of the accident. The old water main, still in use, was north of the excavation, about four feet below the surface of the ground, and one foot from the side of the excavation. South of the excavation and about six feet from its side was a crane weighing 18 to 20 tons. The crane was not in operation. A compressor, weighing two or three tons, was located on the south ...