For affirmance -- Chief Justice Weintraub and Justices Jacobs, Francis, Proctor, Hall, Schettino and Haneman. For reversal -- None. For reversal and remandment -- Chief Justice Weintraub and Justices Jacobs, Francis, Proctor, Hall, Schettino and Haneman. For affirmance -- None. The opinion of the Court was delivered by Francis, J.
In this wrongful death action plaintiff Julia Gallas, administratrix ad prosequendum, sued the defendants Public Service Electric and Gas Co., W.R. Grace & Company, and Bethlehem Steel Corporation to recover for pecuniary loss suffered by her and her four children as the result of the death by electrocution of her husband Stephen Gallas.*fn1 At the trial, defendants' motions for involuntary dismissal were granted at the close of the case. The Appellate Division reversed the judgment in favor of Grace and ordered a new trial. The judgments for Public Service and Bethlehem were affirmed. Gallas v. Public Service Electric & Gas Co., 106 N.J. Super. 527 (App. Div. 1969). Thereafter we granted the petition of Grace and cross-petition of Gallas for certification. 54 N.J. 566 (1969).
The record discloses that on January 23, 1964, Grace contracted for the construction by Bethlehem of a steel water storage tank on the former's chemical plant premises at Fords, New Jersey. The plant was a large one covering a considerable land area. The tank was to be 40 feet in diameter and 33 feet high with a capacity of 300,000 gallons.
Bethlehem subcontracted the construction of the tank to K.L.O. Welding Erectors which was to use fabricated steel supplied by Bethlehem. K.L.O. was engaged in the construction of steel tanks, smoke stacks and water towers. The decedent had been in its employ as a welder for eight to ten years before his death.
The tank foundation was built by others not involved in this action. Construction of the foundation began sometime in late 1963 and was completed around September 7, 1965. It consisted of a concrete ring wall extending about four feet into and about two feet above the ground. Inside the ring, layers of compacted soil were placed and the top layer which was six to twelve inches in depth was penetrated with oil. The steel tank was to be slightly smaller in circumference so as to fit inside the concrete wall with its base resting upon the compacted soil. The purpose of the oil was to protect the bottom plates of the tank. The foundation was located 50 to 75 feet from uninsulated high tension power lines crossing Grace's property, which carried 26,400 volts of electricity and were owned, maintained and serviced by Public Service. There were no signs of any kind near or on the poles to which the wires were attached or on the wires themselves warning of the injurious consequences of contact with the wires. The lines were 26 feet 2 inches above ground in conformity with the minimum requirements of the National Electrical Safety Code. The purpose of the lines was to supply electrical power to the Grace plant. Some distance from the job site, there was a substation designed to transform the high voltage carried by the overhead lines to such lower voltage as was usable within the plant. Public Service inspected the power lines on the Grace property at two or three month intervals. Its representatives made such inspections on January 26, March 12, July 7, and September 21, 1965.
Directly underneath the uninsulated high power lines and about at right angles thereto, Grace maintained a well paved access roadway for the use of its employees, delivery people
and visitors to the plant. This access road ran "right next" to the tank construction site. In the vicinity of the roadway, the job site and the overhead wires, Grace stored a large number of metal drums. At the time of the accident one hundred to two hundred drums were piled there two and three high.
In the early morning of September 21, 1965 a K.L.O. crane was brought to the scene and left in the Grace parking lot on the trailer on which it had been transported. The crane was on caterpillar treads and was powered by a gasoline motor. The boom was 26 feet high and could be raised and lowered and swung in a full circle by the operator. The crane was to be used in lifting and putting the steel plates in place as the tank was constructed.
On the following morning, September 22, three K.L.O. employees, the crane operator, Ivan, and two welders, Gural and Gallas, reported at the work site around 8 A.M. A tractor-trailer also arrived bringing the steel plates to be used in their work. With the aid of the driver of that tractor, the K.L.O. employees undertook to move the parked crane-bearing trailer to the job site. In doing so, they hauled the trailer through the plant gate at the far end of the parking lot and along the access road (which had a slight downward incline toward the job site) to a point a short distance from the concrete circular tank foundation. Before the crane could be unloaded the trailer had to be backed down the access road a very short distance farther and in the direction of the overhead wires in order to permit an oil delivery truck to pass. The crane was then backed off the trailer through the use of skids approximately 18 feet long, and brought to a stop on the roadway three or four feet beyond the skids. At this time the boom was in its fully lowered position.
The crane operator, Ivan, noticed a faulty load cable on the boom and asked Gallas to assist him in replacing it with a new one. In making ...