Conford, Kilkenny and Leonard. The opinion of the court was delivered by Leonard, J.A.D.
In this action for wrongful death, plaintiff administratrix ad prosequendum of the estate of Louis Rodrigues appeals from a judgment of involuntary dismissal of her cause of action.
Plaintiff's decedent had been employed by Allied, Inc. of Rahway as a gas pipe-fitter and "couple-man" for about six months. Allied, an independent contractor specializing in the repair of gas leaks, was engaged by defendant, a natural gas company, to repair a leak in an underground gas line owned by defendant in the area of Cornell Street, Rahway. On August 27, 1964 decedent and two other Allied employees, Adams, a laborer, and Charney, a foreman, traveled by Allied truck to the situs of the leaking gas line.
Upon arrival Charney, by use of an "indicator," ascertained the location of the buried gas pipe and marked off an area three feet by three feet for excavation. Adams dug a hole at that area (on the lawn of a house fronting on Cornell Street) approximately three feet in each dimension -- depth, width and length. This excavation exposed the leaking gas pipe (but not the leak per se), a gas main and a shut-off valve.
Immediately following the digging by Adams, decedent entered the excavation and while in a crouched position shoveled out some dirt and exposed the leak. Adams, at decedent's request, went to Allied's truck and secured a piece of tape and "duck seal." When Adams returned, decedent was standing erect with his foot over the leak. Upon receipt of these materials decedent bent down in the hole and placed them over and around the pipe at the point of the leak. However, they did not stop the leak, and Adams secured more tape and seal from the truck, which he gave to decedent. Again decedent crouched down and applied the tape and seal to the leak. But gas was still escaping with a hissing sound. Adams went to the truck for the third time and returned with an adjustable wrench that he handed to decedent. Decedent then resumed a crouched position and attempted, with the use of the wrench, to shut off the valve, but he was not successful. Once more Adams, at decedent's request, went to the truck to secure additional tape. Upon his return, decedent was not moving and was lying against the side of the hole in a crouched position.
Adams immediately pulled decedent out of the hole and called to a woman in a nearby house to summon "the cops, ambulance or something." Police arrived, but their attempt to revive decedent with the use of oxygen and "another device" was to no avail. He was dead.
Adams testified that he smelled gas and heard it escaping with a "hissing" or "whistle" sound from the time he first began to dig the hole until he removed decedent therefrom. He further testified that when he and the other men first
arrived at the location one of defendant's inspectors was present, but that before the excavation began the inspector and Charney left in defendant's truck for some fittings. They did not return until after the police had arrived.
In this action plaintiff alleges that decedent died of gas asphyxiation. Plaintiff conceded that the natural gas distributed by defendant was not poisonous and that the deceased did not die as a result of any noxious substance or carbon monoxide in the gas. She contends that decedent was asphyxiated, i.e., "gas replaced oxygen and there wasn't enough oxygen in the air for him to remain conscious and survive."
The pretrial order charges that defendant was negligent "in failing properly to supervise the work; properly to warn and safeguard decedent; failing to have on the site and provide necessary equipment both to prevent asphyxiation and to treat employees who might be injured; failing properly to train decedent and other persons who might be working in and about its gas lines in the proper precautions to be taken."
However, in his opening plaintiff charged defendant with negligence in the following respects: the failure of defendant's foreman or other personnel to remain at the job site so that decedent would not be left alone and unattended in a hole with escaping gas; the failure of defendant's truck to remain at the site and to have had thereon proper masks, respirators and equipment to revive people who might be overcome by gas; the failure ...