For reversal -- Chief Justice Weintraub, and Justices Jacobs, Francis, Proctor, Hall, Schettino and Haneman. For affirmance -- None. The opinion of the court was delivered by Francis, J.
[37 NJ Page 58] Plaintiff, a medical doctor, received a jury verdict of $25,000 against defendant, Chemirad Corporation, for personal injuries suffered while in the course of opening a metal cylinder containing a bottle of ethylene imine. At the conclusion of the trial, defendant moved for judgment in its favor. Decision on the motion was reserved and the case was submitted to the jury, which found defendant liable. Thereafter, the trial court held that the evidence of negligence was sufficient to raise a jury question and declined to enter judgment for defendant,
notwithstanding the verdict. R.R. 4:51-2(a). On appeal the Appellate Division concluded that the record was barren of proof of want of due care, and not only reversed the award but remanded the record for entry of judgment for defendant. We granted certification. 36 N.J. 134 (1961).
The case was submitted to the jury on a charge which dealt exhaustively with the doctrine of res ipsa loquitur and of circumstantial evidence of negligence. The Appellate Division not only declared that no direct evidence of negligence was supplied by plaintiff but also that no inference of negligence could be drawn from the circumstances proved. Our study has convinced us that the facts shown provided adequate basis for permissible inferences of negligence, and therefore required the course of action taken by the trial judge.
Dr. Lorenc, who was 39 years of age at the time of trial, was licensed to practice medicine in 1952. He was engaged in general practice in Mountainside, New Jersey. During medical school days, he took an elective course in cancer study and, as the record reveals, his interest in the subject continued thereafter. For about a year and a half prior to the accident in question, he had been experimenting with various compounds and formulas for treatment of cancer. The work was done in an improvised, or makeshift, laboratory in the garage which was at the rear of and attached to his combination home and office in Mountainside; the basement of the house was also used at times. In the course of experimentation, formulas compounded by him would be injected into mice to ascertain if they were tumor-producing, and in some cases to observe the effects on already existing tumors.
Sometime prior to October 9, 1958, he decided to experiment with a formula which included as an ingredient a
chemical known as ethylene imine. That chemical is caustic, corrosive, highly flammable, and volatile; it is dangerous when touched or inhaled.
Defendant Chemirad Corporation manufactures ethylene imine and on October 9, 1958, following a telephone call, plaintiff visited the plant in East Brunswick, New Jersey, to purchase a quantity of it. There he talked with Dr. Hans Osborg, defendant's executive director and vice president, about his experimental work with cancer and the use he intended to make of the ethylene imine. Dr. Osborg agreed to sell him 50 grams and went into the plant to obtain it. The chemical was poured into a glass bottle by a chemist, who also capped it with a bakelite cap. The bottle was then given to the shipping clerk, who completed the packing for delivery. The procedure said to have been followed was this: First, he rechecked the cap to make certain it was tight; he tightened it "a little tighter" to make "sure" it was "snug and tight." After checking for leakage, he wrapped heavy masking tape around the cap. The tape covered the sides of the cap and some of the neck of the bottle. The top surface or crown of the cap was not taped, although the proof revealed that some of the tape extended (in this instance) over a portion of the crown. The sealed bottle was put into a cylindrical metal can, which was specially prepared to receive and hold it firmly in place, as well as to absorb any possible leakage. Vermiculite, a chemically treated, absorbent material, similar to sawdust, was first poured into the can; then the bottle was inserted so as to rest thereon; more vermiculite was poured in, and a stick (of undescribed proportions) was used to pack it down and around the sides and over the top of the bottle to hold the bottle firmly in place, and eliminate movement. Thereafter, a metal top was placed on the can and masking tape drawn around its sides and over the adjoining portions of the can. Labels on both bottle and can warned the purchaser that the contents were caustic and flammable. There is no doubt that Dr.
Lorenc was aware of the dangerous qualities of the chemical he had acquired.
After receiving the container from Dr. Osborg, plaintiff said he carefully placed it in his automobile. On arriving home, he took the container into the garage, stood it, top up, in a corner near his workbench, and "propped" it in that position.
On November 23, 1958, a little more than six weeks later, Dr. Lorenc decided to unpack the bottle. He put the container on the workbench, removed the masking tape and the top. No odor was emitted (ethylene imine has a strong odor); the vermiculite appeared dry and not discolored. He tilted the container with his right hand to allow the top and side covering of the vermiculite to filter through the fingers of his left hand into a cardboard box on the bench. The intention was to stop the bottle as it slid out. While the vermiculite was sieving through his fingers, there was a sudden gush of ethylene imine over them. As this happened he caught the bottle, righted it and put it on the workbench. The entire top or crown of the cap had come off in one piece and passed between his fingers into the cardboard box. The rest or sides of the cap with the masking tape undisturbed remained in position on the bottle. The liquid had poured on the tougher palmar surface of his fingers and had run between them and around on their dorsum surfaces. On righting the bottle, he plunged the hand into a nearby water-filled basin to dilute the chemical and wash off as much of it as possible. After doing so, he put acetic acid on the fingers in a further attempt to ameliorate the corrosive effects. In spite of these efforts, severe burns were suffered, the nature and sequelae of which will be discussed at a later point in this opinion.
In the trial of the action, plaintiff charged defendant with negligence in packing the ethylene imine and in using a bakelite cap for the bottle. Some expert opinion evidence was offered to support these specific allegations but the substance of it was either rejected or stricken on motion by
the trial judge, or removed from jury consideration in the course of his charge. At the close of the plaintiff's case, however, defendant's motion for dismissal was denied on the theory of res ipsa loquitur. Of course, allegations of specific acts of negligence in pleadings or pretrial orders, or efforts to prove such acts at trial, do not preclude reliance upon res ipsa loquitur where the facts warrant its application. Reiter v. Max Marx Color & Chemical Co., 35 N.J. 37, 42 (1961).
In defense, Chemirad established the manner of packaging the ethylene imine, as has already been described above, and Dr. Osborg testified that approval of the method had been obtained from the United States Bureau of Explosives. He asserted, as well as an expert witness produced by defendant, that bakelite caps are suitable and in frequent use for capping bottles containing ethylene imine. It was shown, however, that Dr. Osborg had given an answer to interrogatories which reflected somewhat on that proof. The question and answer follow:
"Q. State fully and completely and in all details the type of container in which the aforesaid ethylene imine was packed, the manner in which it was packed, the type of cork used?
A. Ethylene imine is poured into a glass bottle. This glass bottle is closed with a cap, preferably a steel cap, which is lined with a polyethylene washer, * * *." (Emphasis ours)
On another occasion, while testifying in a pretrial deposition, he was asked:
"Q. What type cap did you use?"
On direct examination by defense counsel at this trial, the following appears:
"Q. And has your company in shipping this particular size bottle used both steel caps and bakelite caps?
A. Yes, but the steel caps for this particular size usually sit on the shoulder of the bottle, and may not provide as tight a seal at the mouth of the neck of the bottle as this bakelite cap does.
Q. Well, are there circumstances under which the steel caps are preferable for shipping ethylene imine?
A. No, not necessarily. For larger bottles it's the general feeling that the larger the bottle the more you prefer to have a steel cap on it instead of a plastic cap."
The obvious conflict in these answers was not reconciled. As we read the record, the doctor's attempted explanation on cross-examination of the interrogatory answer, that it "refers to the entire packing, not just one little bottle," is not very enlightening or satisfactory. In any event, assuming the case was properly submitted to the jury for consideration, evaluation of the answer and explanation was a problem for that fact-finding body.
During the examination of defendant's witnesses, plaintiff suggested on the basis of the packing clerk's testimony about his practice to tighten the cap a little more after the bottle came to him from the chemist to make sure that it was snug and tight, that in doing so he may have cracked or started a crack somewhere along the edge of the crown of the hard but brittle bakelite cap, where the sides join the crown. The witnesses maintained they had never seen such an occurrence and expressed the view that an ordinary man did not have strength enough in his hands to cause it. In this connection, an odd incident took place. Defendant had put in evidence certain bottles and caps of the same type as given to plaintiff, and had passed them to the jurors for examination. When they were collected, it appeared that the cap of one was broken. On inquiry by the court, a juror announced that he had broken it with his hands. The matter was dropped at that point. Defense counsel did not attempt any inquiry as to just how the juror had accomplished the breaking; nor did he request the court to instruct the jury then, or in the charge, as to the significance of the event, if any, on the case of the defense. It may be noted, however,
and that the juror who broke the cap voted for the defendant. that the jury verdict followed a 10-2 vote for the plaintiff,
Perhaps the most important aspect of the defense rested in the claim that if a through and through crack was already in the bakelite cap prior to, or occurred during, or on account of the manner of packing the bottle, the highly volatile imine would have evaporated within the six and one-half weeks that elapsed between delivery to plaintiff and the accident. A basic assertion was that a bakelite cap would not be cracked part way through; if a crack existed at all it would necessarily go completely through the brittle material. Such a crack would permit air to enter and the volatile imine to vaporize. The Appellate Division, in ruling for defendant, said that the "proofs established beyond controversy * * * that if there had been any crack in the cap, even a hairline crack, prior to the time plaintiff opened the metal container, the chemical would have vaporized, leaving a tell-tale odor and a honey-like deposit." It also accepted as a matter of law the conclusion that if any such through and through crack existed on delivery of the bottle, the chemical would have evaporated in the period intervening before plaintiff's accident. In our judgment, the record, viewed as it must be most favorably to the plaintiff, cannot be said to be so barren of contrary inferences as to require removal of the case from jury consideration.
The testimony does reveal plainly that a crack or hole of through and through proportions in the bakelite cap would permit the ethylene imine to escape in six and one-half weeks. But the evidence does not show beyond dispute either that under any and all conditions the result would follow, or that under the conditions existing in Dr. Lorenc's garage during the period in question, the result was inevitable. Defendant offered expert proof to the effect that if there had been a leak in the cap the ethylene imine vapor would have escaped in the period of six weeks "at a temperature, I think, of about 70 degrees Fahrenheit or [on?] the average." (Emphasis ours.) But the chemical
was purchased on October 9, 1958, and the accident took place on November 23, 1958. No proof was adduced either as to the outdoor temperature or the temperature in the garage during that period. Moreover, whether the garage was heated was not shown. Apparently conscious of the season of the year involved, counsel for defendant asked about evaporation at temperatures "somewhat lower, 40 to 50 degrees." The expert answered that "it would still escape rapidly." He did not say, however, that under such temperatures or under those prevailing in the garage during the period, the liquid would have evaporated completely. Dr. Osborg said that if a leak had existed at the time of packing "practically all, if not all" of the imine would have evaporated and been absorbed in the vermiculite in the six weeks. In view of this testimony it is improper, in our view, to say that all the facts and inferences therefrom establish conclusively that given a crack of any proportions at all in the cap, complete evaporation would have taken place before plaintiff undertook to remove the bottle from the container.
Additionally, it should not be forgotten that defendant's packer, after tightening the cap a little tighter to make it snug and tight, wrapped substantial masking tape around it. There is no dispute that the tape extended over the sides of the cap and over onto the crown. The court observed this at the trial, as did defense counsel, who remarked that the tape did not go up over the crown all the way around. The tape was still in place at the time of trial; it had never been removed after the packer had put it there. There is no substantial proof to the contrary. No testimony was offered by the defense as to whether, if a small crack had come into existence during packing, the tape could have held the fractured segments in place so as to prevent escape of the imine ...