Conford, Collester and Labrecque. The opinion of the court was delivered by Labrecque, J.A.D.
Plaintiff, as general administratrix of the estate of John F. Crosby, deceased, appeals from a judgment in favor of defendant County of Hudson following a jury verdict of no cause for action.
On March 31, 1964 plaintiff's decedent, John F. Crosby, was severely burned while a pay patient at the Berthold S. Pollak Hospital for Chest Diseases (Pollak Hospital), a facility owned and operated by defendant. He died on April 4, 1964 as the result of his burns. Thereafter plaintiff, as administratrix ad prosequendum and general administratrix, instituted the present suit to recover, respectively, for decedent's wrongful death and for his medical and hospital expenses and the pain and suffering he underwent following
the accident. Defendant pleaded governmental immunity and contributory negligence as special defenses.
The testimony as to the occurrences leading up to decedent's death may be summarized as follows. On November 25, 1963 decedent, then 65 and suffering from diabetes, arthritis and a chronic brain syndrome, was transferred from a nursing home to the geriatrics section of the Pollak Hospital for treatment and care. He was described as "incapable of taking care of his physical functions," was "dizzy at times" and "always falling." On several occasions while at home he had burned himself or the furniture through the use of cigarettes.
Upon his transfer to Pollak Hospital decedent's children told the nurse in charge and the attendants that decedent "had previous trouble with cigarettes due to senility" and asked them "to control his cigarettes and stay with him while he smoked." Cigarettes (not matches) intended for decedent's use, were entrusted to the floor nurse for safekeeping.
Although it does not appear that decedent's smoking habits were interfered with during the period immediately following his admission, it was not long before cigarettes were taken away from him by those in charge and he was allowed to have one only when accompanied by an attendant. The cigarettes for his use (entrusted to the nurses by his children) were kept locked in a medicine closet to which only the head nurse and one other nurse had access.
Towards the end of December 1963 three of decedent's fingers were burned when a book of matches allegedly flared up while he was handling it. Thereafter a notation was entered on the "Doctor's Order Sheet" which read "Not [to] let him have cigarettes." The order was initialed by Mrs. Looby, the head nurse. Decedent's daughter testified that on her weekly visits she had regularly noticed holes burned in decedent's robe and pajamas. However, this was not observed by the head nurse.
A nurse's aide (one step above an orderly) testified that at about 11 A.M. on March 31, 1964, upon hearing screams
emanating from the 11th floor solarium in the geriatrics section, he rushed in and found decedent tied in a reclining chair by a leather belt and on fire. The fire was not extinguished until decedent had sustained extensive second-degree burns. He was subsequently transferred to the Jersey City Medical Center where he died.
Although there were 46 to 47 patients on the 11th floor, the only personnel on duty there at the time of the incident were the nurse's aide, a nurse and a porter. The person who had moved decedent from his bed to the solarium and had then strapped him into the chair was not identified. However, Mrs. Looby, who was in general charge of the floor, testified that she had observed decedent seated in the chair in the solarium at about 10 A.M. He was then unattended and was restrained with a drawsheet, not straps. She testified that this was done because "Mr. Crosby was starting to wander * * * because every chance he got he went downstairs or the elevator." The only other people in the room were approximately ten patients (presumably also diabetic geriatrics). She further testified that prior to the accident she had been allowing decedent to have cigarettes, but only when an attendant would procure one from her (or the staff nurse) and then "Give it to Mr. Crosby and light it and stay with him while he smoked." She confirmed the incident in December 1963 when decedent sustained burns to his fingers when a book of matches flared up in his hand, but could not state whether an attendant was with him at the time this happened. There was no report of this incident in the hospital records.
Miss Vera, the staff nurse who was in charge in the absence of the head nurse, testified that she had been working on another part of the floor when the accident occurred and did not know who had moved decedent into the solarium and strapped him in the chair. When she administered medication to him early in the morning in his room she found him to be confused. She left him there with a Mrs. Santos, an attendant.
Both nurses testified that the cigarettes (and matches) were kept in a locked cabinet (in which the medicines were also kept) to which only they had access. The inference from their testimony was that neither had given a cigarette to defendant that morning, prior to the accident. Neither Mrs. Santos nor the porter who was on duty were called as witnesses.
There was no direct testimony as to just what happened at the time of the accident. The hospital's "progress record" of the patient contains a recital that he was "burned while smoking in bed." It is clear from the other proofs that the italicized words should have read "in a chair." Plaintiff testified that she received a telephone call from Dr. Boylan, the attending physician at the hospital, who said, "I am calling to tell you that your father Mr. Crosby has met with an accident. He was smoking and caught fire and had been burning for quite a while until someone could get to him and he is severely burned * * *." Dr. Boylan testified that he didn't think he did any more than tell plaintiff that her father had been burned in an accident at the hospital. A portion of the patient's "progress record" which bore his signature recited that:
"The [patient] found on solarium engulfed in flames. Attendant immediately wrapped [patient] in blankets and smothered the flames. Then other employees used a Soda and Acid fire extinguisher to douse the blankets and patient who was then returned to bed. Nurse removed remaining charred clothing and cleansed the body with plain water.
There are extensive second degree burns of the head, neck, shoulders, face, arms, chest, back, and trunk onto both thighs. The [patient] is conscious and at present not in shock. Dr. Timmes notified for [consultation]. [Patient] to be transferred to 15th surgical floor for further treatment."
The "incident report," which was signed by Dr. Boylan, referred to the nurses' report which recited that:
"While giving pre-lunch Insulin, on the West Side of the 11th floor and upon returning to the treatment room to rinse syringes, I smelled smoke and hurried to investigate the source. When I
got to the East side corridor I saw smoke and the floor was all wet. In the solarium the patient, Mr. John Crosby was on the floor along side of a smoldering chair. The porter, Mr. D. Hoffman had by this time smoldered the fire on the patient with sheets. The porter hastily ran and got the fire extinguisher and applied it to the sheets and chair.
Then we picked up the patient and placed him in a chair and put him to bed. I then immediately returned to the phone and called front desk to report the fire. I called physician for emergency help then returned to the patient's room and removed burned clothing and applied blankets (as external heat).
Dr. Boylan responded rapidly as well as surgical resident and then emergency treatment was started. M. Vera. R.N."
The trial judge dismissed the count seeking recovery under the Death Act, N.J.S. 2 A:31-1 et seq., for failure to prove damages. He denied plaintiff's motion to strike and withdraw from the jury's consideration the defense of contributory negligence. The case was then submitted to the jury under a charge which required it to factually determine whether decedent's injury had resulted from defendant's active wrongdoing in the performance of its duty of caring for decedent and whether he was guilty of contributory negligence, and hence barred from recovery. The jury rendered a verdict of no cause for action and a subsequent motion for judgment for plaintiff n.o.v or for a new trial was denied by the trial judge. The present appeal challenges only the judgment against the general administratrix based upon the jury's verdict.
Disposition of the matter before us calls for resolution of two issues: (1) was it proper to submit to the jury as a matter of defense the issue of decedent's asserted contributory negligence, and (2) was the jury properly charged as to what constituted active wrongdoing which would justify a recovery against the defendant.
In general, the question of the existence vel non of contributory negligence is one for ...