Conford, Freund and Sullivan. The opinion of the court was delivered by Sullivan, J.A.D.
Defendants, pursuant to leave granted by this court, appeal from an order of the trial court setting aside a jury verdict of no cause for action in favor of defendants and ordering a new trial of the matters in issue.
The respective consolidated actions herein were for wrongful death and personal injuries sustained by paid firemen while fighting a fire in the line of duty. The fire occurred on February 17, 1960, and destroyed a large factory building which was located on the boundary line separating the cities of Passaic and Clifton. Plaintiffs Harry Weiss and Edward B. Nolan were paid firemen of the Passaic Fire Department, who sustained personal injuries while fighting the fire. They brought suit for damages for such injuries. William Jackson,
who also was a paid fireman of the Passaic Fire Department, suffered injuries while fighting the fire, from which he subsequently died. His widow, who was appointed general administratrix ad prosequendum of his estate, brought suit for damages for his wrongful death.
The trial of the consolidated actions took about eight days. Plaintiffs called some 23 witnesses and also put in evidence numerous exhibits. Defendants cross-examined a number of plaintiffs' witnesses but did not present any proofs of their own. As heretofore noted, at the conclusion of the case the jury returned a verdict of no cause for action in favor of defendants. Plaintiffs thereupon moved for a new trial, which was granted, the trial court ruling that on an unbiased and fair evaluation of the evidence it did not see how the jury could have reasonably come to its verdict.
The evidence in the case showed that the property in question was a four-story brick building owned by defendant Raywin Realty Co., Inc. As heretofore noted, the building was partly in Passaic and partly in Clifton. Defendant Velveray Corporation (Velveray), which was in the business of textile printing and laminating and plastic printing, was a tenant in said building, occupying the first floor and part of the basement.
On February 17, 1960, at about 8:45 A.M., a fire broke out in an overhead exhaust fan located on the first floor of the building. Employees of Velveray attempted to put the fire out with extinguishers. However, a guard at the Manhattan Rubber plant across the street saw flames and smoke coming out of a first-floor window and had a telephone call made to the Clifton Fire Department. The call was made about 8:55 A.M., and Clifton fire apparatus arrived at the scene shortly thereafter. In the beginning the fire was believed to be minor. However, it soon spread to the upper floors and eventually engulfed the entire building. The Passaic Fire Department was called about 9:35 A.M. Sometime after 10 A.M. -- plaintiff Weiss fixed the time at between 10:15 and 10:30 A.M. -- a portion of an upper wall of the building blew
out or collapsed. Firemen Jackson, Weiss and Nolan were outside the building at the time, in the process of "hooking up" the water tower apparatus which had been pulled up alongside the factory building. Jackson and Nolan, who were working on the ground, were struck by debris from the falling wall. Weiss, who was working on a fire truck, jumped clear of the falling debris but in doing so was injured.
It is charged that fireman Jackson's death, and the injuries sustained by firemen Weiss and Nolan, resulted from their being exposed to an undue risk of injury beyond that inevitably involved in fire fighting, which risk was created by conditions attributable to defendants' negligence. These conditions may be summarized as follows:
(1) Alleged negligence in maintenance and operation of sprinkler system.
(2) Alleged storage and use of inflammables contrary to Clifton ordinance.
(3) Failure to call the fire department.
(4) Failure to have a trained fire brigade among its employees.
(5) Alleged cracks and openings in the flooring of the building.
(6) Poor housekeeping in defendants' plant, all of which contributed to the spread of the fire.
The rationale of plaintiffs' asserted cause of action is that the aforesaid conditions attributable to defendants' negligence caused the fire to spread rapidly and engulf the entire building. The intensity of the fire generated a mass of heat, smoke and gases which, triggered by the introduction of oxygen through ventilation, built up pressure within the building. ...