Hansen v. Eagle-Picher Lead Co.

• Decision Date: 05 November 1951
• Docket Number: EAGLE-PICHER,No. A--13,A--13
• Citation: 84 A.2d 281,8 N.J. 133
• Parties: HANSEN v.LEAD CO.
• Court: New Jersey Supreme Court

Page 133

8 N.J. 133

84 A.2d 281

HANSEN v. EAGLE-PICHER LEAD CO.

No. A--13.

Supreme Court of New Jersey.

Argued Sept. 24, 1951.

Decided Nov. 5, 1951.

Elmer J. Bennett, Jersey City, argued the cause for appellant (Carpenter, Gilmour & Dwyer, Jersey City, attorneys).

Samuel Weitzman, Newark, argued the cause for respondent (Parsonnet, Weitzman & Oransky, Newark, attorneys).

The opinion of the court was delivered by

ACKERSON, J.

Plaintiff brought this action in the Superior Court, Law Division, to recover damages for injuries alleged to have been sustained when he was struck on the head by a piece of sheet metal while on defendant's premises as an invitee.

At the close of plaintiff's case the defendant rested without putting in any evidence and each party moved for the direction of a verdict (actually a motion for judgment) pursuant to Rule 3:50. Defendant's motion, made on the ground that there was no proof of negligence on its part which proximately caused the plaintiff's injury, was granted and judgment was accordingly entered for the defendant. On plaintiff's appeal the Appellate Division reversed, and, since one judge dissented, the present appeal by the defendant is before us as of right pursuant to Rule 1:2--1(b).

The determinative question presented on this appeal is whether or not plaintiff's proofs established a Prima facie case of defendant's negligence requiring the submission of that issue for the jury's determination.

The evidence tended to establish the following pertinent facts: On January 7, 1948, the plaintiff, Carl Hansen, was one of eight or ten carpenters engaged in the completion of the interior of a large one-story building which his employer, Wigton-Abbott Company, an independent contractor, had undertaken to build for the defendant, Eagle-Picher Lead Company, as an addition to its plant. The building was then in the final stages of construction and was turned over to the defendant in May, 1948. Defendant is a manufacturer of paint products; its plant, located on premises off Blanchard Street in the City of Newark, covers an extensive area of buildings and grounds surrounded by a fence. Entrance thereto is obtained through a guarded gate, and all buildings, streets and roads within the fenced area are the private property of the defendant, closed to the general public. On the aforementioned day (January 7, 1948), the plaintiff, accompanied by Anthony Aiello, an apprentice carpenter, went to the plant cafeteria during a scheduled rest period to have a cup of coffee. While walking back to the new building on one of the defendant's private roads, plaintiff was struck on the head--'just to the right of the top of the head'--by an object which caused the injuries for which damages are now sought.

At the time of the accident plaintiff had been walking, with Aiello on his right, in a general northerly direction toward the one-story building under construction which lay approximately 100 to 150 feet directly in front of them, and they were about 25 to 35 feet away from the side line of a five-story building described as a mill and warehouse which was situated on plaintiff's left or westerly side. The new one story structure ran across the road and joined the higher building near its center, thereby forming an 'L' or wing. The area immediately to plaintiff's right was an open space, but they were approaching a small building on that side where the contractor maintained a field office and next to this was defendant's machine shop.

The plaintiff, although sustaining a deep cut on his head, did not see what struck him; neither did Aiello who testified that he also was struck on the head by the same object causing his hat to be knocked off, and on turning around he saw a piece of galvanized sheet metal lying in the street alongside his hat. He had not observed this object in the street while he and plaintiff were walking, and assumed that this was the instrumentality which had struck them because it was the only object lying in the street after the occurrence. It was a straight strip of metal (not corrugated) three feet by two feet in size and one-sixteenth to one-eighth of an inch thick. Investigation of this article shortly after the accident revealed that 'It still had blood on it.'

In the trial court the plaintiff, as appears from his counsel's opening statement and the pretrial order, relied upon the doctrine of Res ipsa loquitur to raise a Prima facie inference of negligence. The trial judge in granting defendant's motion for judgment, ruled that the plaintiff was not entitled to the presumptive effect of the aforesaid doctrine because there was no evidence from which it could be reasonably inferred that the defendant had control or management of the piece of metal claimed to have caused the injury complained of, nor that it fell or came from the five-story building he was passing at the time of the occurrence. In reversing the judgment below, the majority opinion of the Appellate Division held that the case was one of 'circumstantial evidence' wherein the probabilities that the injurious agency came from the five-story building due to some cause for which the defendant was responsible, presented a jury question as to the latter's negligence.

The basis for this conclusion appears in the following excerpts from the majority opinion: 'The conclusion is almost irresistible that plaintiff's wound was caused by the piece of sheet metal and that it had been propelled from an upper floor, or roof, of the factory which plaintiff and Aiello were passing. * * * The four- or five-story building was part of defendant's paint plant. There is no proof that any sub-contractor was working there, or that anyone, not an employee of defendant, was in or on the building. In the absence of such proof, a jury might have found that the defendant controlled the activities there carried on, and that the persons in the factory were agents and employees of defendant, at work within the scope of their employment. * * * Presumptions or inferences of this sort grow from common experience. * * * What seems to us a probable explanation of the occurrence is that an employee of defendant, intending to forward defendant's work by getting the sheet metal out of the way, carelessly threw it from the window. * * * The proofs were such that the jury might deem that a preponderance of the probabilities supported the thesis of defendant's negligence.'

We approach the solution of the problem before us by observing that the mere showing of an accident causing the injuries sued upon is not alone sufficient to authorize an inference of negligence; negligence is a fact which must be shown; it will not be presumed. Indeed there is a presumption against it and the burden of proving the charge of negligence contained in the complaint is upon the plaintiff and must be sustained by proof of circumstances from which defendant's want of due care is a legitimate inference. It is a substantial right of defendant that plaintiff be required to bear this burden. McKinney v. Public Service Interstate Transp. Co., 4 N.J. 229, 241, 72 A.2d 326 (1950); Oelschlaeger v. Hahne & Co., 2 N.J. 490, 494, 66 A.2d 861 (1949); Glicken v. Bergman, 117 N.J.L. 306, 309, 187 A. 535 (E. & A.1936); Church v. Diffany, 124 N.J.L. 100, 104, 11 A.2d 55 (E. & A.1939).

It is in this field of legitimate inferences that the doctrine of Res ipsa loquitur had its origin. This doctrine or maxim has had the consideration of our courts on many occasions and the principle involved is said to be rested upon the theory '* * * that when through any instrumentality or agency under the management or control of a defendant or his servants there is an occurrence, injurious to the plaintiff, which, in the ordinary course of things, would not take place if the person in control were exercising due care, the occurrence itself, in the absence of explanation by the defendant, affords Prima facie evidence that there was want of due care.' It is a rule of evidence merely and not of substantive law. It is necessary to the application of the doctrine that those seeking the benefit of its presumptive effect must show that in all probability the direct cause of the injury (the instrumentality or thing causing the mischief) and so much of the surrounding circumstances essential to its occurrence were in the exclusive control of the defendant, his agents or servants. The requirement is based upon the theory that the means of obtaining information as to the condition and causes which brought about the occurrence are wholly within the defendant's possession and it is incumbent upon him to explain because of his peculiar knowledge. Mumma v. Easton & Amboy R.R. Co., 73 N.J.L. 653, 658, 65 A. 208 (E. & A.1905); Den Braven v. Meyer Bros, 1 N.J. 470, 473, 64 A.2d 219 (1949); Oelschlaeger v. Hahne & Co., supra, 2 N.J. at page 494, 66 A.2d 861; Hamrah v. Clements, 3 N.J. 285, 289, 69 A.2d 720 (1949); McKinney v. Public Service Interstate Transp. Co., supra, 4 N.J. at page 242, 72 A.2d 326; Menth v. Breeze Corporation, Inc., 4 N.J. 428, 436, 73 A.2d 183, 18 A.L.R.2d 1071 (1950); Kramer v. R. M. Hollingshead Corp., 5 N.J. 386, 389, 75 A.2d 861 (1950); Grugan v. Shore Hotels Finance, etc., Corp., 126 N.J.L. 257, 262, 18 A.2d 29 (E. & A.1940); Cicero v. Nelson Transportation Co., Inc., 129 N.J.L. 493, 496, 30 A.2d 67 (Sup.Ct.1943).

As above noted, the majority opinion of the Appellate Division held that the instant case was solely one of circumstantial evidence and 'the proofs were such that the jury might deem that a preponderance of the probabilities supported the thesis of defendant's negligence.' On the record before us we are not persuaded to the latter view.

It is well settled that the existence of a possibility of a defendant's responsibility for a plaintiff's injuries is insufficient to impose liability. 'In the absence of direct evidence, it is incumbent upon the plaintiff to...