Woschenko v. C. Schmidt & Sons

• Decision Date: 16 May 1949
• Docket Number: No. A--274,A--274
• Parties: , 12 A.L.R.2d 281 WOSCHENKO v. C. SCHMIDT & SONS, Inc., et al
• Court: New Jersey Supreme Court

Page 269

2 N.J. 269

66 A.2d 159, 12 A.L.R.2d 281

WOSCHENKO v. C. SCHMIDT & SONS, Inc., et al.

No. A--274.

Supreme Court of New Jersey

Argued April 18, 1949.

Decided May 16, 1949.

Mr. Herbert Horn, Atlantic City, argued the cause for the appellant C. Schmidt & Sons, Inc. (Messrs. Lloyd & Horn, Atlantic City, attorneys).

Mr. Samuel P. Orlando, Camden, argued the cause for the appellants Michael Buglio and Silvio Venturi.

Mr. Robert G. Howell, Bridgeton, argued the cause for the respondent (Messers. Stanger & Howell, Bridgeton, attorneys).

The opinion of the Court was delivered by

OLIPHANT, Justice.

This appeal brings before us for review a judgment rendered by a jury at the Cumberland Circuit of the former Supreme Court awarding damages in a negligence case against both defendants.

The essential question presented is whether, assuming negligence on the part of both defendants, the proofs were sufficient to present a jury question as to whether the negligence of either or both was a proximate cause of the accident.

Plaintiff attended a christening party given by one Zatzariny on the night of September 25, 1943, at a public hall in Vineland, at which there were well over 100 guest. To enliven this affair Zatzariny had ordered from defendant Buglio, a beer distributor, two half barrels of beer. On the afternoon of the party defendant Venturi, an employee of Buglio, together with a helper delivered to the hall two wooden half barrels of defendant Schmidt's beer, together with a dispensing box containing coils, which would normally be packed with ice to cool the beer, a spigot, the necessary connecting hoses, a tapping rod and a tank containing 550 pounds of carbon dioxide gas.

At the request of one Lubin, a relative of Zatzariny, and his friend Sitkoff, who were then at the hall preparing for the party on behalf of Zatzariny, Venturi tapped one of the barrels and connected it with the dispensing box and the tank of gas. After the tapping approximately four glasses of beer were drawn to determine whether the unit was operating properly, after which Venturi and his helper departed. There is conflict in the testimony as to whether Venturi opened the valve of the gas tank momentarily to see that it was flowing and also to instruct Lubin and Sitkoff in the use of the valve. If it was opened it is clear that it was closed tightly immediately thereafter, the handle removed by Venturi and given to Lubin who placed it on top of a tall closet nearby and out of sight.

The party commenced about 7:00 P.M. and from that time on until between 11:00 P.M. and midnight Lubin, acting as bartender, dispensed a large quantity of beer both in glasses and pitchers. The beer ran normally throughout this period and Lubin testified there was no trouble with the pressure and at no time was it necessary to use the valve to obtain any gas. After Lubin departed Sitkoff and Zatzariny himself joined in the dispensing of beer, still from the same barrel. It still ran normally until some time after midnight when the flow slowed and Zatzariny suggested that the second keg be tapped. This was not done, however, because it was then too late in the opinion of some. Notwithstanding the reduced flow of beer it was claimed by plaintiff's witnesses that no gas was drawn from the tank.

Approximately ten to fifteen minutes after the flow of beer had slowed, and while plaintiff was approaching the dispensing unit to obtain a glass of beer, the barrel exploded, the force of the explosion being sufficient to drive it up to the ceiling knocking a large hole in it and a complete half section of the bottom head of the barrel was blown away. Plaintiff suffered severe injuries to his face requiring the enucleation of the left eye.

The negligence charged against defendant Schmidt was that it used a rotten and defective keg, failed to inspect it for any defective condition and failed to warn persons of its defective condition. That against Buglio and Venturi was that they installed the keg and dispensing apparatus without a guage in the gas tank and distributed beer in a keg which they should have known was defective. This latter charge was contained in three separate counts which were disposed of by the trial court in favor of defendants on a motion for a directed verdict.

To procure a normal flow of beer from a set-up such as was here used the pressure had to be kept down to 15 or 20 pounds. The beer flowed properly for a period of nearly six hours. The keg was nearly empty at the time of the explosion and the flow of beer had nearly ceased.

The case was not tried on the theory of res ipsa loquitur for the obvious reason that both the beer barrel and the pump equipment, coils and tank were not in the exclusive control of either of the defendants for some five or six hours prior to the explosion. Cf. Den Braven v. Meyer Bros., Sup.Ct.1949, 64 A.2d 219, not yet officially reported; Glicken v. Bergman, 117 N.J.L. 306, 187 A. 535; (E. & A.1936), and we are led to the inescapable conclusion that the jury ignored the question of proximate cause and found for the plaintiff simply because an unexplained accident happened. On the proofs here this case is clearly distinguishable from Taylor v. Berner, 7 N.J.Misc. 597, 146 A. 674, (Sup.Ct.1929) affirmed Err. & App.1920, 106 N.J.L. 469, 150 A. 371; Dunn v. Hoffman Beverage Co., 126 N.J.L. 556, 20 A.2d 352, (E. & A.1941); MacPherson v. Canada Dry Ginger Ale Co., 129 N.J.L. 365, 29 A.2d 868, (Sup.Ct.1943). Cf. Healey v. Trodd, 124 N.J.L. 64, 11 A.2d 88, (E. & A.1940).

It was the bounden duty of the plaintiff to prove the proximate cause of the accident and resulting injury to plaintiff. Proximate cause means there must be no other culpable and efficient agency intervening between the defendant's dereliction and the injury. Wiley v. West Jersey R.R. Co., 44 N.J.L. 247, 251 (Sup.Ct.1882).

As to either or both of these defendants there are obvious missing links in the chain of causation. As to the defendant brewer Schmidt, while there is proof that the barrel head was partially rotted, that inspection of re-used barrels was merely visual without any tests as to pressure, and that such decay inside a barrel could not be discovered by such inspection, no reasonable or proper inference could be drawn from such proof that any of these facts or omissions were the proximate cause of the explosion. The proofs as to the pressure of the beer in the barrel up to the time of its delivery to the hall seem to negate any inference of negligence in filling the barrel with beer.

There is no proof of the physical laws or forces which would establish the fact that the additional pressure generated by the handling of the barrel in the usual, normal or foreseeable manner, would break through the weak section of the barrel head with such force as to project the barrel up with the destructive force that produced the injury here complained of. This link in the causal connection is completely missing. Nor is there any proof of what inside pressures, whether they were 40, 60 or 100 pounds per square inch, could produce such a result under the proven conditions or that any such pressures beyond 30 pounds would develop from the normal handling of the barrel.

It may well be for example that a defective automobile tire bursting at thirty-five pounds pressure per inch will not dangerously lift or deflect an automobile, but the answer may be otherwise where an almost empty beer barrel is concerned. The establishment of...