Nat'l Sheet Metal Roofing Co. v. N.Y. Tel. Co.

• Decision Date: 16 May 1927
• Docket Number: Nos. 410, 419.,s. 410, 419.
• Citation: 137 A. 409
• Parties: NATIONAL SHEET METAL ROOFING CO. v. NEW YORK TELEPHONE CO. SAME v. PUBLIC SERVICE ELECTRIC & GAS CO.
• Court: New Jersey Supreme Court

137 A. 409

NATIONAL SHEET METAL ROOFING CO.

v. NEW YORK TELEPHONE CO.

SAME

v. PUBLIC SERVICE ELECTRIC & GAS CO.

Nos. 410, 419.

Supreme Court of New Jersey.

May 16, 1927.

Appeals from District Court of Jersey City.

Action by the National Sheet Metal Roofing Company against the New York Telephone Company and the Public Service Electric & Gas Company, impleaded as the Public Service Gas Company. From a judgment for plaintiff against the defendant last named, said defendant appeals, and from judgment for the defendant first named, plaintiff appeals. Judgment against defendant last named reversed. Judgment for defendant first named affirmed.

Argued October term, 1926, before KALISCH, KATZENBACH, and LLOYD, JJ.

Insley, Vreeland & Decker, of Jersey City, and Hamilton Cross, of Ridgewood, for National Sheet Metal Roofing Company.

Joseph Coult and Henry H. Fryling, both of Newark, for appellant Public Service Electric & Gas Company.

Smith & Slingerland, of Newark, for respondent New York Telephone Company.

PER CURIAM. On February 13, 1923, an explosion occurred in a conduit of the New York Telephone Company located in Grand street, in the city of Jersey City, opposite the property of the National Sheet Metal Roofing Company. The property is known and designated as Nos. 339-345 Grand street. The National Sheet Metal Roofing Company (hereinafter called the plaintiff) commenced an action against the New York Telephone Company (hereinafter called the telephone company), and the Public Service Electric & Gas Company (hereinafter called the public service company) to recover the damages it sustained to its property by reason of the explosion. The suit was instituted in the Second district court of Jersey City. The state of demand alleged that the conduit of the telephone company was defective and that the gas pipes of the public service company were leaky. When the case came before the court for trial (a jury having been summoned), the plaintiff proved the explosion and the damages it sustained. The testimony as to the explosion was to the effect that the street heaved up for a space of approximately 10 feet by 15 feet. The plaintiff produced no evidence that the conduit of the telephone company was defective. There was also no evidence offered by the plaintiff that the gas pipes of the public service company were leaky or in bad repair.

Upon the conclusion of the plaintiff's testimony, counsel for the telephone company asked the court to grant a nonsuit. The counsel for the public service company made the same motion. The court stated that it would reserve its rulings on these motions until the end of the case.

The telephone company then proved by expert witnesses the method of construction of the manhole where the explosion had apparently taken place. The testimony showed that it had been constructed in the year previous to the explosion; that the cables were in good condition after the explosion; that the cover and sides of the manhole were damaged; that the construction employed by the telephone company was of the most approved type; that there was not trace of any escaping gas. The public service company then offered the testimony of a witness to the effect that no notice of any seepage or leaking of gas pipes had been brought to the attention of the company. On cross-examination, this witness admitted that it might have been one, two, or three years since the gas pipes in this part of Grand street had been inspected.

Upon the conclusion of the testimony, the counsel for the telephone company made a motion for a direction of a verdict for that company. Counsel for the public service company made a similar motion. The court directed the jury to return a verdict in favor of the telephone company. In so deciding, the court stated that, in its opinion, it was not a case where the doctrine of res ipsa loquitur applied to the telephone company. The motion of the public service company was denied, and the court permitted the case to go to the jury as against the public service company. The jury returned a verdict against the public service company and in favor of the plaintiff for the sum of $444.60.

The plaintiff has appealed to this court from the ruling of the district court in directing a verdict in behalf of the telephone company. The public service company has appealed to this court from the judgment rendered against it. The cases were tried together. There is but one state of the case. The...