Krauth v. Geller

• Decision Date: 09 March 1959
• Docket Number: No. A--517,A--517
• Parties: Ernest M. KRAUTH, Plaintiff-Respondent, v. Israel GELLER, Defendant-Appellant, and Buckingham Homes, Inc., a corporation of the State of New Jersey, also known as Buckingham Builders, Defendant.
• Court: New Jersey Superior Court — Appellate Division

Page 442

54 N.J.Super. 442

149 A.2d 271

Ernest M. KRAUTH, Plaintiff-Respondent, v. Israel GELLER, Defendant-Appellant, and Buckingham Homes, Inc., a corporation of the State of New

Jersey, also known as Buckingham Builders, Defendant.

No. A--517.

Superior Court of New Jersey

Appellate Division.

Argued Dec. 8, 1958.

Decided March 9, 1959.

Edward E. Kuebler, Newark, for defendant-appellant.

Harold E. Teltser, Newark, for plaintiff-respondent (Torppey & Teltser, Newark, attorneys; Harold E. Teltser, Newark, of counsel).

Before Judges PRICE, SCHETTINO and HALL.

The opinion of the court was delivered by

HALL, J.A.D.

In this action plaintiff, a salaried officer of the West Orange Fire Department, sued for personal injuries sustained by reason of a fall on appellant's premises during the course of responding to an alarm for a fire therein. The appeal is from a judgment in plaintiff's favor entered in the Law Division on a jury verdict. A subsequent motion for a new trial was denied. The claim against the corporate defendant was dismissed by the trial court and we are not concerned with it here. The principal grounds urged for reversal are denial of appellant's motions for involuntary dismissal at the end of plaintiff's case and for judgment at the conclusion of the entire case, and alleged errors in the charge to the jury. Pervading the whole case is the legal question of the duty owed, in the instant circumstances, by a land occupier to a fireman on the premises to extinguish a fire.

The complaint charged in the first count that appellant, as the owner and general contractor of a house in the course of construction at the time of the occurrence, 'carelessly, negligently, wantonly and willfully' failed to maintain proper and reasonably safe conditions upon the premises in connection with a stairwell, and otherwise and similarly, and 'unlawfully' as well, 'placed or caused to be placed within said house a salamander or firepot, which said considerable smoke to escape from it, thereby filling the house,' and that such conduct 'caused a dangerous condition to exist in the house,' by reason of which plaintiff fell and injured himself while in the house in the line of duty. The second count, on the same factual allegations, asserted that because of 'the dangerous and defective conditions which existed' appellant 'created a nuisance,' as a result of which plaintiff fell and sustained injury. The answer was a general denial and also pleaded the affirmative defenses of contributory negligence and assumption of risk.

Plaintiff's factual contentions, as set forth in the pretrial order, were that appellant created and maintained a dangerous condition on the premises, one, by permitting a salamander to burn in the house with escaping smoke and without maintaining control of it or providing a watchman and in violation of the town ordinance and state statute (of which violations, incidentally, there was no proof at the trial), and, two, by lack of proper safeguards about a balcony and stairwell during construction and in failing properly to construct the premises (of which failure there was also no proof) and to inform plaintiff of the dangers, all of which it was claimed created and set in motion a dangerous and hazardous situation with foreseeable risk of accident.

The pretrial order did not make clear just what legal duty plaintiff claimed he was owed. It did not specify whether he conceived liability could be imposed simply on the basis of so-called ordinary negligence or if wilful or wanton conduct was required. Both bases were mentioned in the order (as well as the nuisance theory). This uncertainty was carried into the charge. Both (together with the concept of nuisance) were put to the jury in a confusing manner without adequate explanation. For example, at one point in the charge, the judge said this:

'A member of a public fire department who, in an emergency, enters on premises in the discharge of his duties is a mere licensee under a commission to enter, given by law, to whom the owner or occupant is under no duty except to refrain from injuring him willfully or wantonly and to exercise ordinary care to avoid imperiling him by active conduct.'

But he then went on immediately to state:

'Further, if the owner or occupant of land knows of some artificial or natural condition on the premises and in the exercise of reasonable foresight he realizes that it involves an unreasonable risk to a licensee, the owner or occupant has the duty to take responsible (sic) care to make the condition safe or to give a warning of its presence and of the extent of the risk involved.'

Since a principal question on this appeal is the propriety of the denial of appellant's motions, we shall set forth the facts in the light most favorable to plaintiff under the familiar rule that the evidence must be so considered on such motions. Practically all of the evidence on the issue of liability came in on plaintiff's case, and, except in small particulars, his proofs were not challenged or added to by appellant's witnesses.

About 8 p.m. on March 5, 1955 plaintiff and three other firemen responded to a fire call at premises owned by appellant at 10 Lancaster Terrace, West Orange, which had been turned in by a neighbor. They discovered a salamander (admittedly owned by appellant) flaming out of its stack in the basement of the premises, which was a front-to-back split-level home then under construction by appellant. A salamander is a self-contained stove burning oil and not connected with an outside chimney. It is used to heat homes during construction and, as here, to dry out plaster. If the air intake remains properly set, it burns without flame or smoke coming out of its stack. The device was extinguished but considerable smoke had filled the house and it was necessary to open the temporary windows to allow the house to air out. It was dark inside and the firemen found it necessary to use portable lights to find their way around. While there was no evidence in the basement that the flame had communicated fire to the building itself, to make certain the firemen went to the bedroom level and checked the walls, ceilings and floors there. Upon completing this inspection the plaintiff and another fireman, one McChesney, left one of the bedrooms and proceeded to return to the living room level. McChesney was using a portable light by reason of the smoke and its beam was directed past plaintiff's right leg. When plaintiff left the bedroom he walked straight ahead, thinking he was going down the stairs, but by reason of the smoke obstructing his vision, he stepped off a balcony, the railing for which had not yet been erected, and fell into a stairwell leading from the living room level to the basement, thereby sustaining the injuries for which he brought suit.

On March 1, 1958 plaintiff's fire company had been called to the premises to extinguish an overheated salamander. Again on March 2 the fire company was called for the same purpose. Plaintiff was in the group which responded on the 1st but was not present on the 2nd. Both alarms were sent in by neighbors who had seen the stack glowing red in the darkness and believed there was an actual fire. There was some question as to whether there was any real need for the fire company to be called on these occasions, but that is of no moment.

Between the fire call on March 1 and that on March 5, appellant was admonished by the assistant chief of the fire department with respect to the use of the salamander. The assistant chief testified that he told appellant not to use the salamander unless a man was left in attendance or appellant personally checked it. The latter denied that he had been instructed that an attendant was necessary (this was the only real contradiction in the evidence) and testified that the assistant chief advised him to place a piece of tin or sheet rock on the top of the stack and that he had communicated this request to his plasterer-subcontractor working on the premises and to whom he had loaned the device and who was the one actually using it. He said he had checked and found this had been done. (In our determination of this appeal we do not consider this testimony of defendant since plaintiff is entitled to the most favorable consideration of the evidence.) It may be pointed out that the reason for the admonition about its future use was not because it might endanger firemen or any one else, or even cause property damage, but rather to avoid the annoyance and trouble of unnecessary visits by the firemen. The assistant chief testified he told appellant that 'we would not expect to answer a fire call again.'

Plaintiff admitted that he knew the premises were under construction and that there was no railing around the balcony from which he fell. He knew this from answering the fire call on March 1 and his further observation of the condition when answering the alarm on March 5.

We proceed to a consideration of the various reason advanced by appellant in support of his position that the trial court erroneously denied his motions for judgment.

One of the grounds of the motion made at the conclusion of the case was that appellant was under no liability because, as we have just said, he lent the salamander to his plasterer, claimed to be an independent contractor, who was actually using it and over whom he exercised no direction or control. The Plasterer was not called as a witness. Appellant said he could not locate him. The contention and issue do not appear in the pleadings or pretrial order as such, but appear to have been fully tried without objection (R.R. 4:15--2). The question was left to the jury. There was no objection to this portion of the charge. The failure to grant the motion on this ground is urged here as reversible error. In view of our basis of decision, we need not pass on it.

Appellant moved for dismissal of the second (nuisance) count of the...