Meyer v. Board of Ed., Middletown Tp., A--77

• Decision Date: 03 March 1952
• Docket Number: No. A--77,A--77
• Citation: 86 A.2d 761,9 N.J. 46
• Parties: MEYER et al. v. BOARD OF EDUCATION, MIDDLETOWN TP. et al.
• Court: New Jersey Supreme Court

Page 46

9 N.J. 46

86 A.2d 761

MEYER et al. v. BOARD OF EDUCATION, MIDDLETOWN TP. et al.

No. A--77.

Supreme Court of New Jersey.

Argued Feb. 11, 1952.

Decided March 3, 1952.

Sam Weiss, Perth Amboy, argued the cause for appellants (Norman J. Currie, Keyport, attorney; Edward W. Currie, Matawan, on the brief).

J. Victor Carton, Asbury Park, argued the cause for respondents (Durand, Ivins & Carton, Asbury Park, attorneys).

The opinion of the court was delivered by

WACHENFELD, J.

The plaintiff, Charles Meyer, in his own right and as guardian Ad litem for his minor son, Edward brought this action for injuries sustained by the latter as a consequence of having his finger caught and mangled in the belt-drive mechanism of a power jig saw.

The saw in question was installed by the defendant board of education in manual training classes in a public school in Middletown Township for the use of students, of whom Edward was one. The defendant Curry was the instructor in charge of the class at the time of the accident.

The facts surrounding the occurrence of the mishap are not complicated nor in dispute. At the close of a class period, as was usual, the students, on Curry's instructions, were cleaning the various machines used in the shop. Edward was cleaning sawdust off the jig saw while a classmate was engaged in replacing the blade of the saw. Without warning, the classmate threw the electric switch starting the saw in operation, with the result that the little finger of Edward's left hand was drawn along the drive-belt and became enmeshed between it and the wheel around which it turned. The finger was badly cut, exposing the bone.

The instructor, Curry, was in the room, about 40 feet away, when the accident happened and his first knowledge of it came when Edward approached him exhibiting the damaged finger.

The complaint alleges negligence on the part of the board of education in maintaining the saw 'unequipped with proper guards, safety appliances and protective devices,' and on the part of Curry because the machines in the manual training department 'at his direction and with his instruction * * * were operated in the negligent manner aforesaid,' that is, without the proper guards, etc.

The answer denies negligence and, by way of separate defenses, sets up contributory negligence, assumption of risk, the performance by the board of a governmental function and the statutory provisions concerning its liability and that of its agents and servants.

The accident took place in April 1949 when the plaintiff Edward was 16 years old. The previous September, at the start of the school term, Curry had explained to the students each of the machines and the routine prevailing in the shop. Under the established rules, no boy was to turn on a machine unless he had a definite use for it; there were to be no two boys on any one machine at one time; no boy was to turn on a machine until he was satisfied the blade was clear and the moving part was free; he was not to turn on the machine until he had at least an arm's length clearance in each direction on either side and to the rear of him. Moreover, 'safety pads,' surrounded with a two-inch red mark, were placed in front of the machine. No one was to be within that line while the machine was in operation excepting the person operating it.

The saw which caused the injury had been in the shop at least since 1943, when Curry assumed the position of instructor and supervisor, and although used by three classes a day averaging 25 boys each, there had been no previous accidents.

At the conclusion of the defendants' case, they moved for a directed verdict, which was granted after an extensive colloquy. The Appellate Division affirmed and the case comes here on certification granted by us.

Both the trial court and the Appellate Division decided that the doctrine of 'intervening cause' controlled and found for the defendants, basing their decision principally on Taylor v. Kelvin, 121 N.J.L. 142, 1 A.2d 433 (E. & A.1938). The appellate court in its opinion analyzed the facts and concluded thusly:

'When the plaintiff student started cleaning the sawdust from the 'back part of the table' the machine was perfectly harmless because it was not running. Smith, the fellow student, turned on the switch despite the infant plaintiff's presence in plain view and admittedly in violation of the instruction of defendant teacher given to each pupil 'not to turn a machine on until he has at least an arm's length clearance in each direction.' * * *

'The act of the fellow pupil in starting the machine while the infant plaintiff was in plain view within an arm's length of it in violation of an instruction known to both boys was such an independent intervening cause as to break the chain of causation between the accident and the oversight of duty, if any, on the part of defendants or either of them. The act of the fellow pupil was the sole proximate cause of the injury.'

No consideration was given nor was there an adjudication on the question of immunity from liability of the defendant board of education by reason of R.S. 18:5--30, N.J.S.A.

The plaintiffs repel the reasoning employed and assert there was evidence of 'active wrongdoing' which warranted submission of the case to the jury to determine whether it was the proximate cause of the resulting injury, citing Turck v. Kaywal Realty Co., 3 N.J.Super. 165, 65 A.2d 757 (App.Div.1949); Batts v. Joseph Newman, Inc., 3 N.J. 503, 71 A.2d 121 (1950); Menth v. Breeze Corp., Inc., 4 N.J. 428, 73 A.2d 183, 18 A.L.R.2d 1071 (1950), and others hereinafter referred to.

It was not sought to charge the board with the negligence, misconduct or misfeasance of the defendant teacher. The theory advanced was liability for its own corporate act in purchasing, installing, maintaining and permitting to be used by pupils in its school, under its direct control, a dangerous machine the character of which was known to it, relying upon Herman v. Bd. of Education, 234 N.Y. 196, 137 N.E. 24, 25, 24 A.L.R. 1065 (Ct.App.1922), where the plaintiff, a pupil in the manual training department of a high school, received injuries while operating an unguarded buzz saw. The Court of Appeals of New York held the board liable in negligence, holding that where the body acts for itself, it is bound to do so with due regard for the safety of children and others in its care 'in the discharge of those duties imposed on it by law, which are not delegated or delegable to others.' The finding of 'active wrongdoing' as an essential element in the tort liability of a public body engaged in the performance of a governmental function, as required in this State, was not discussed or considered in the opinion.

The doctrine prevailing in this jurisdiction was enunciated by Justice Heher in Allas v. Rumson, 115 N.J.L. 593, 181 A. 175, 176, 102 A.L.R. 648 (E. & A. 1935), wherein he acknowledged the difficulty frequently arising in its application 'There is some confusion in the adjudicated cases as to what constitutes active wrongdoing by a municipality, and the line of demarcation it not always clearly maintained. The difficulty usually lies in the application of the principle to the facts of the particular case. The true distinction seems to be whether the private injury has resulted from a wrongful act or positive misfeasance, as distinguished from mere negligence. A private action must rest upon some positive, affirmative act, 'wrongful in itself, and detrimental to the plaintiff.''

Many cases in reference to 'active wrongdoing' are compactly digested and arranged chronologically in an opinion by Justice Burling in Truhlar v. Borough of East Paterson, 4 N.J. 490, 73 A.2d 163, 166 (1950). They are so directly pertinent to the problem presently encountered as to make it worthwhile to quote at length:

'Our cases in which the doctrine of active wrongdoing has been applied relate to situations where the direct cause of the injury was the physical contact between the injured person or property and a condition created by the act of the governmental authority. The following cases are illustrative: In Hart v. Freeholders of Union, 57 N.J.L. 90, 29 A. 490, 491 (Sup.Ct.1894), the Board of Freeholders 'wrongfully and illegally made a deep excavation in a public highway under the control of said board, into which the plaintiff, while lawfully passing along the highway, fell, and was injured.' In Kehoe v. Rutherford, 74 N.J.L. 659, 65 A. 1046 (E. & A.1907), the municipality diverted surface water by means of artificial drains onto private land; a similar situation existed in Doran v. Asbury Park, 91 N.J.L. 651, 104 A. 130 (E. & A.1918); Cochran v. Public Service Electric Co., 97 N.J.L. 480, 117 A. 620 (E. & A.1922), involved an injury sustained by contact in the dark with an unlighted safety isle erected in a public street; in Allas v. Rumson, supra, the municipality constructed a sloping ramp for use as a public passage from a public road to the borough hall. The ramp was depressed and on each side of it was a concrete retaining wall, the top of which was level with the ground. There were no guard rails or other protective devices on the adjoining ground levels. The plaintiff, in walking on the ground level, in the dark, fell into the ramp and sustained injury. * * * In Hammond v. County of Monmouth, 117 N.J.L. 11, 186 A. 452 (Sup.Ct.1936), the injury was sustained by a fall into an unprotected excavation made in a highway by the defendant. In Fisher v....