Goldmann, Kilkenny and Collester.
Plaintiff appeals from a Law Division judgment entered in defendant's favor following a jury verdict of no cause of action. His sole contention is that the trial court committed reversible error in charging the jury with respect to contributory negligence.
On October 7, 1959 plaintiff drove his truck to defendant's plant for the purpose of purchasing 12 tons of bituminous concrete (blacktop) manufactured by defendant and used by plaintiff and his father in their business of excavating and paving. He had been to the plant for the same purpose on hundreds of other occasions. On the day in question he followed the procedure used for some years by him and others of spraying the inside of the truck body with oil furnished by defendant, so that the blacktop would not adhere. After procuring an order slip from the company office and delivering it to defendant's employee Davis, he backed his truck into an aisle beneath the mouth of a hopper from which the blacktop was to be dropped through a chute into the truck. Plaintiff was standing on the platform near the cab of the truck,
waiting for Davis to discharge the blacktop. He testified that the material came out of the hopper in a mass of flames, and this before reaching the truck. He said he was thrown from the platform, fell onto the concrete and lay there until the ambulance came to pick him up. Although admitting on cross-examination that he occasionally smoked a cigarette, he denied he had been smoking at the time of the accident. He also testified that there was some oil underneath the truck.
Defendant's witnesses stated that the blacktop comes out of the hopper at 130 to 135 degrees temperature. The asphalt which goes into the mixture is ordinarily heated to 140 degrees and the crushed stone dust to 100 degrees or less. (The testimony does not indicate whether these temperatures refer to Centigrade or Fahrenheit.) Davis, who operated the hopper, said that he did not know just how hot the mixture was. He testified that just before he released the first load of blacktop he observed plaintiff standing on the platform alongside of the truck, and that he was smoking. Before discharging the material he opened the inspection door of the mixer to make sure the blacktop was thoroughly mixed. He saw no fire in the mixture at that time. He then pressed the button which would permit the mixture to drop into the truck. It was then that he looked down and saw fire coming up from the body of the truck. He immediately turned off the switch to stop the flow of the mixture.
Defendant company's secretary Kernan testified that after the incident plaintiff was not lying on the ground but walked to the office and around the plant; he looked "just a little red" and excited.
Not only did plaintiff deny that he had been smoking while standing beside the truck, but he produced a witness, claims investigator Fox, who testified that Davis had made and signed a statement in which he said that he did not see plaintiff smoking either a cigar or cigarette or see him throw a match into the truck.
There was no evidence of the type of oil used to spray the truck, or of the volatility or flash points of the oil or any of
the materials constituting the blacktop, or of the lighting of a match or lighter.
In his charge the trial judge gave the jury the usual instruction that plaintiff had the burden of proving by a preponderance of the credible evidence that defendant was negligent and its negligence was the proximate cause of the injury. After defining "negligence" he permitted the case to go to the jury under the res ipsa loquitur doctrine, couching his instruction substantially in the language of Lorenc v. Chemirad Corp. , 37 N.J. 56, 70 (1962), where the court said that the doctrine was applicable when
"* * * (1) the accident which produced a person's injury was one which ordinarily does not happen unless someone was negligent, (2) the instrumentality or agency which caused the accident was under the exclusive control of the defendant, and (3) the circumstance indicated that the untoward event was not caused ...