Lewis, Labrecque and Carton. The opinion of the court was delivered by Labrecque, J.A.D.
[96 NJSuper Page 543] These five actions arose out of a tragic fire in a tenement house owned and operated by defendants, located on Wallace Street, Newark, on August 27, 1963, in which six persons died and five sustained personal injuries. Plaintiff Howard Ellis brought suit as administrator ad prosequendum of the estates of Pearl Ellis and Anthony Ellis, and, in a separate action, he sued as guardian ad litem of Patricia Ellis, and individually. Charles Ellis sued as administrator ad prosequendum of the estate of Ida Mae Ellis. Alberta Friday, the tenant in the third-floor apartment, sued individually and as guardian ad litem of her children Howard, Roberta and Ethel, for their personal
injuries. In a separate suit she sued as administratrix ad prosequendum of the estates of her children, Loretta, Patricia Ann and Delphine.
All five actions were consolidated and a trial limited to the issue of liability was ordered. R.R. 4:43-2(b). After a two-week trial the jury, by a vote of 10-2, returned a verdict in favor of defendants.
The structure in which the fire took place was a three-story tenement built in 1891. On each floor were four rooms, arranged in a row in "railroad" fashion. As viewed from the front of the building they were: living room, first bedroom, second bedroom and kitchen. Actually, the living room on the third floor was being used as a bedroom at the time of the fire. The living room, one bedroom and the kitchen each had doors opening into a common hallway in which the stairway giving access to the lower floors was located. The kitchen had an additional doorway leading to a rear stairway. Between the two bedrooms and protruding into them was an air shaft approximately three feet square, which passed through all three floors and was topped with a skylight. At each floor level the air shaft presented four double-hung windows. The only rooms having windows opening to the outside were the front (living) room and the kitchen.
On the morning of August 27, 1963 a fire started on the second floor. It was later determined that it resulted from the action of a six-year-old boy who, while playing with matches, had dropped a match into some clothing. Initial efforts to put out the fire were unsuccessful and it spread laterally to the second-floor front, to the rear stairs and into the hallway. The victims of the fire were Mrs. Friday, her six children, her mother Mrs. Ellis, her sister-in-law Pearl Ellis, and the latter's two children. When the fire was discovered they were in the front room of Mrs. Friday's apartment. There was testimony that some window panes in the shaft were broken or missing and that the fire moved up the air shaft, creating a "curtain of fire" which cut off
egress, either through the bedrooms or the hallway, to the rear stairs. The hallway on the second floor also became engulfed in flames, thereby cutting off exit by the main stairs. Mrs. Friday and her mother then attempted to escape by going up another stairway and trying to open the "scuttle" leading to the roof. Mrs. Friday testified that they were unable to lift it. They then returned to the children, who were trapped in the front room. As the fire came nearer some jumped to the pavement and suffered injuries for which they sued. The remainder perished where they stood.
The case was submitted to the jury on the theory of common law negligence. Plaintiffs produced two expert witnesses who testified, in substance, that the location and manner of construction of the shaft rendered it a fire hazard, that it was built of combustible materials and that the windows which opened into the apartment and the hallway were not fire resistant. Because flames from the shaft window which opened onto the hallway would interfere with the escape of persons from the front area of the apartment in case of fire in the shaft, they testified that there should have been a fire escape at the front of the apartment. As noted, there was also proof that the scuttle to the roof could not be opened.
Defendants denied negligence and proximate causation. Specifically, they produced testimony to the effect that the scuttle had not been fastened down but could readily have been raised. There was proof that the tenement had been inspected by inspectors from the Tenement House Bureau and had passed inspection. More specifically, defendants contended that the shaft was of fireproof construction, and that no front fire escape was necessary because of a provision in the statute which did away with its necessity where there were two independent stairways not adjacent to one another. N.J.S.A. 55:3-4. Defendants also contended that their negligence, if any, was not a proximate cause of the injury or damage claimed, but
that the starting of the fire in the apartment below and the alleged failure to summon the fire department promptly were independent intervening causes which destroyed the chain of causation and compelled a finding in their favor.
Plaintiffs' motion for a new trial was denied and the present appeals followed.
Plaintiffs first contend that the trial judge erred when he charged the jury on the issue of intervening cause, and compounded the error by stating that it was not foreseeable that a small boy would start a fire on the second floor.
We recognize the well settled rule that as long as the law is stated correctly and intelligently, the ultimate test of the soundness of instructions to the jury is not what the ingenuity of counsel can, at leisure, work out the instructions to mean, but how and in what sense, under the evidence and the circumstances of the trial, ordinary jurors would understand the instructions as a whole. Kargman v. Carlo, 85 N.J.L. 632, 638 (E. & A. 1914). If, viewed as a whole, the charge presents the law fairly and clearly, the fact that some expressions, standing alone, may be said to be erroneous affords no ground for reversal. Vadurro v. Yellow Cab Co. of Camden, 6 N.J. 102, 107 (1950). "The acid test is, would the jury be misled?" Middleton v. Public Service Co-Ordinated Transport, 131 N.J.L. 322, 323 (E. & A. 1944). Here our consideration of the charge in its entirety compels the conclusion that, in addition to being focused upon the initial cause of the fire rather than the issue which the jury was to be called upon to determine, it involved substantial errors in a number of respects which call for reversal.
In the heart of the challenged portion of the charge the jury was instructed:
"The term proximate means that there must be no other culpable or other agency intervening between the defendant's negligence and dereliction and the injury and damage.
An intervening cause in the act of an independent agency which destroys the causal connection between the ...