Lora, Crane and Michels. The opinion of the court was delivered by Lora, P.J.A.D.
On May 16, 1974 plaintiffs Clarence Burd and Mary Burd filed suit against defendants New Jersey Telephone Company and Continental Oil Company.
At the close of plaintiffs' case defendants' motions to dismiss based upon the statute of limitations and the insufficiency
of the evidence were denied. At the close of all proofs the trial judge denied motions to dismiss made on the grounds that plaintiff Clarence Burd was contributorily negligent as a matter of law, that the evidence was insufficient to send the case to the jury and that the count in strict liability in tort should be dismissed for failure to prove that the product which caused Burd's injuries was defective. The trial judge also denied a motion to dismiss in behalf of defendant New Jersey Telephone Company on the ground that it was not in control of the job and should not be held vicariously liable for Burd's injuries. A motion to dismiss the count based on absolute liability because plaintiff had failed to show that the product which caused his injuries was ultrahazardous was granted. Plaintiff Mary Burd's claim was dismissed for failure to prove any damages. No appeal was taken from the dismissal of her claim.
The case was submitted to the jury, which returned a 10-2 verdict in favor of plaintiff Clarence Burd and against both defendants in the amount of $100,000. Judgment, including interest, was entered on June 26, 1975 in the amount of $107,026.44. Motions for a new trial were denied.
On appeal defendants contend that the trial judge erred (1) in finding plaintiff's claim was not barred by the statute of limitations; (2) in denying defendants' motion to dismiss based upon the alleged insufficiency of the evidence; (3) in ruling that plaintiff was not contributorily negligent as a matter of law; (4) in charging the jury on the issue of defendant New Jersey Telephone Company's vicarious liability; (5) in submitting to the jury the contract between M.B. Phillips, Inc. and New Jersey Telephone Company, and (6) in refusing to grant a new trial on the ground that the jury verdict was against the weight of the evidence.
The record reveals that on September 7, 1971 plaintiff Clarence Burd suffered a heart attack while working as a laborer for M.B. Collins, Inc., a general contractor for New Jersey Telephone Company.
The contract provided, among other things, that M.B. Collins, Inc. would control the manner and mode of performance of the work. Employees of New Jersey Telephone visited the site a couple of times a week but gave no orders to the workers. However, New Jersey Telephone supplied M.B. Collins, Inc. with pipe, manhole frames, couplings and, most importantly, the glue that was manufactured by Carlon, a subsidiary of defendant Continental Oil at the time of plaintiff's heart attack.
Plaintiff had been on this job for approximately one week at the time of his heart attack. He worked in a trench which was 5' deep and 18" wide. His job was to glue together the ends of pieces of plastic pipe, using the pipe and glue supplied by New Jersey Telephone Company. He may also have done some shovelling and levelling.
The pipes were made of light plastic material and were 4" in diameter. Each section was 20' long and about 220' of pipe would be laid in an average day. The pipes were laid two across and eight high. Thus, plaintiff would glue approximately 176 pipe connections daily. No ventilating equipment was provided for use in the trench.
The temperature was in the 80s on the day of plaintiff's heart attack and he was working in a direct sunlight, causing him to sweat profusely. Burd returned from his lunch break at about 12:30 P.M. but stopped working at 12:45 due to dizziness and pains in his upper torso. At 3:45 P.M. he was admitted to the hospital. The ultimate diagnosis was acute myocardial infarction with congestive heart failure. He was released from the hospital at the end of September but suffered another heart attack on October 12, 1971 and returned to the hospital. Plaintiff has not worked since his release from the hospital at the end of October 1971 and he continues to have considerable pain when he walks.
Burd claims he was unaware of a possible link between the glue and his heart attack until October 1972 when his
former attorney received a report containing that suggestion from a doctor who had examined plaintiff in conjunction with the worker's compensation case.
At trial plaintiff identified a can of glue identical to that used on the job. Seventy-five percent of the glue was Tetrahydrofuran (THF). The label stated, "Caution * * * Avoid inhaling fumes * * *," but did not mention danger, toxicity or the need for adequate ventilation. Parenthetically, we note that Marvin B. Crawford, a chemical engineer employed by Continental Oil Company and Director of Technical Services for Carlon, testified that he believed this label conformed with the requirements of the Federal Hazardous Substances Act.
Burd stated that he read the label and that if it had said "danger," "toxic" or "adequate ventilation required," he wouldn't have worked in the trench with the glue. Plaintiff noted that neither M.B. Collins, Inc. nor New Jersey Telephone told him the glue was toxic. He had worked two prior jobs using the same solvent cement and had been using it for two days on this job prior to his heart attack. He would begin to feel dizzy about 1 ...