N.J. Fid. & Plate Glass Ins. Co. v. Lehigh Valley R. Co.

• Decision Date: 18 November 1918
• Docket Number: No. 55.,55.
• Citation: 92 N.J.Law 467,105 A. 206
• Parties: NEW JERSEY FIDELITY & PLATE GLASS INS. CO. v. LEHIGH VALLEY R. CO.
• Court: New Jersey Supreme Court

105 A. 206

92 N.J.Law 467

NEW JERSEY FIDELITY & PLATE GLASS INS. CO.

v. LEHIGH VALLEY R. CO.

No. 55.

Court of Errors and Appeals of New Jersey.

Nov. 18, 1918.

Appeal from Supreme Court.

Action by the New Jersey Fidelity & Plate Glass Insurance Company against the Lehigh Valley Railroad Company. Judgment for plaintiff, and defendant appeals. Affirmed.

Lindley M. Garrison and Gilbert Collins, both of Jersey City, and E. H. Boles and R. W. Barrett, both of New York City (Geo. S. Hobart, of Jersey City, of counsel), for appellant.

Edwin F. Smith, of Jersey City, and Maximillian M. Stallman, of Newark, for appellee.

KALISCH, J. Stripped of all technical matters which do not appear to affect materially the merits of the case, the main legal questions raised by the appellant concern the application of the ordinary legal rules pertaining to cases of negligence of the kind, as here. The contention of appellant's counsel is that the trial judge erred in failing to properly apply these legal rules, in denying appellant's motion for a nonsuit, and for a direction of a verdict in its favor, and in his charge to the jury.

The respondent, plaintiff in the court below, obtained a judgment for the sum of $23,687.37, as compensation for the damages alleged to have been sustained by it, in replacing certain glass, which the plaintiff was under a legal duty to replace, and which was broken in various buildings located in Jersey City and neighboring cities, as the result of an explosion, at one of the Jersey City terminals of the defendant along the Hudson river, at an early hour in the morning of July, 1916.

The defendant introduced no evidence. The undisputed facts in the case are that at the time of the explosion the defendant had in its possession and gathered together on its pier, and for several days prior thereto, 38 cars of an average holding capacity of not less than 60,000 pounds of explosives. These cars were loaded to their full capacity with this extrahazardous material, and in the aggregate contained more than 2,000,000 pounds of explosives. Eleven of these cars contained 600,000 pounds of trinitrotoluol, known as T. N. T., a very high and dangerous explosive. The effect of the explosion was the loss of human lives and widespread destruction and devastation of property. Where the cars had been standing, the force of the explosion produced a crater which was 375 feet long, 220 feet wide, and 10 to 12 feet in depth.

The proof tends to show that the origin of the explosion was a fire, which started at or near the ammunition cars and was first discovered by a watchman, in the employ of a detective agency, who notified an employé of the defendant; that the defendant had in its employ four or five watchmen who had manifold duties to perform on the inside of the various warehouses and storage rooms of the defendant company, to care for a grain elevator and the machinery around it, to look after the boilers in the various buildings, and to keep the fires going and the steam up; to look after a crane on the premises and the machinery around it, etc.

There was also testimony tending to establish, that the piers and yard were approachable from the river and land sides, and that on occasions persons would come from the street and from the boats and gather and sit upon the dock until driven off by the watchman.

Moreover, it appears that this vast quantity of high explosives was stored in proximity to the habitations and businesses of millions of human beings whose lives and properties were thereby exposed to a risk of unusual danger.

The first count of the plaintiff's complaint was predicated on a nuisance, but that was eliminated by the trial judge, and therefore need not be considered.

The second count alleged a failure to exercise proper care in watching and guarding explosives, extinguishing and controlling fires, etc.; in employing a sufficient number of watchmen and guards; in furnishing sufficient fire fighting apparatus; in storing, handling, and disposing of the explosives; in keeping in repair sufficient means of communication with the fire and police departments; and in giving notice to the fire department at once.

Taking up for consideration, first, the question whether the trial judge erred in refusing to grant a nonsuit or to direct a verdict for the defendant, our conclusion is that he did not.

The legal rule as to the degree of care resting upon individuals or companies who maintain agencies which are dangerous to human life is well expressed, by Chief Justice Magie, in Newark Electric Light Co. v. McGilvery, 62 N.J.Law at page 454, 41 Atl. 956, where he says:

"Such companies using in business wires to carry a subtle and invisible power highly dangerous to life must, although authorized to stretch such wires along poles in public highways, exercise a very high degree of care for the safety of those who may be thereby exposed to danger."

By concensus of opinions, of text-writers, on the law of negligence, and by judicial decisions, "high degree of care" denotes no more than a degree of care commensurate with the risk of danger.

Whether the defendant had exercised that degree of care commensurate with the risk of danger arising from the accumulation of the vast quantity of high explosives upon its premises, in cars which stood in close proximity to each other, was clearly a jury question.

Under the pleadings and proof in the cause, the jury was warranted in taking into consideration the exposed condition of the premises where the cars containing the explosives stood, the possibility of their being tampered with, or set on fire by intruders, or through the carelessness of workmen employed by the defendant, in and about the premises; and might properly have found that the number of watchmen employed by the...