Petition for Writ of Certiorari — Schultz v. Home Oil Co. (No. 475)

Supreme Gourt af the Bnited

October Term, 1957 o &

. : 475

3 “ANNE. E SCHULTZ, as Adiaindidoitnte of i Goods, my

‘Chattels, Rights and Credits which: were of John C.

Schultz, and as Administratix Ad Pros quendum of

od ohn C. an deceased,

| \Piddiinkes,

ee

HOME OIL COMPANY, a “corporation, ?

ington

ae PETITION | FOR WRIT OF CERTIORARI TO THE.

SUPREME COURT OF THE STATE

>. OF NEW-JERSEY. |

.JacosB- RassneER,

_ Attorney for Petitioner.

| THOMAS F. ‘iwi

On the Brief.

r a e _ PAGE

Open Milow Ans. lec. sie cance sels BS,

WRI: Fibin cs. cscscs cans i tedenceagsceee este oe

oss Question Presented . SoS ere tee aiaews eee

--Reasons fot Granting the — & ce beeeees ie + = 2. 4

Giatembin’ Ss. sdb os ode ce cick 36 ea

" Anculent: Ss Tau eS Sas . Se.

Pont I—Plaintiff - was ented her inalienable

right to pave the” disputed questions of fact

determined by a* ‘jury, a righf given her by

the Constitution of the State of New Jersey .. 6

N.

a .

* Porxr II—Plaintiff has been denied her constitu-

tional rights in that the right of trial by jury __

guaranteed by the Constitution of the State —

oF f New Jersey was refused; in that the trial

d court arbitrarily: invaded and usurped, the —

very function of a jury and assumed to pass ,

-upon the weight of the evidence and credi- .

bility of- the. witnesses contrary to the i

| eee Seana <8 ie CORES thes.

thie States . Per eree ts paren |

athe Fourteenth ‘Ainendntat to the’ United See

‘States Constitution provides that no State ,

- shall deprive any person of life, fC awe

or property, without due process of Maw ss: > T:

- Litiganits in. civil - eases are afforded the pro-

— tection of the due process of law provision ecetrs

.. of the Fourteenth Amgndment Se ee Na a a a <a

eX “Due process of law under the Fourteenth

ee _ . Amendment ‘has: pgptected defendants in

Ne aes Sahai criminal cases nee paeakeseews essa

: ‘ Wet tS 1. The fumes that caused the explosion did Sees

. cae xi not wn aaa within the ane peccass oe

i a ee Tae

a ire ; .

5 The fumes originated eutibdis the build.

ing and came into the room through vents.

in the windows and cracks ‘ Gn the doors: - 15

Por IlI—Plain tiff has established the. egedul 7

. and important reasons required by Rule 19 _

and the decisions of this Court. for the granting

of a writ of certiorari in this CASE... 6... eee Ses

Conclusion. ......... ae Abtteeee eae aes . ie 24 |

Appendix A—Opinion of Appellate Division setae

Appendix B—Mandate on Affirmance fae eeee week 10a Cd

x Appendix C—Order Denying Petition ena oy eee < | z

oe - ‘Cases Cited i 4 ree We.

Chandler ps Fretag, 348 U. s. 3° 15 S. ~ Ct. aE oe Ait a

—_ v.Town. of Somers, 351 U. f 3. 141, "76 S. Ct. eee

724 ike REE ORR Cr RSRAREAT COLO ENS tet k ena ss Mees

‘Brie Railroad Domipiay’ e cameras 304 U.S. 64, Shes

CS Sj Re eames ower a

. Ferguson v. Moore- MeCormiek Lines In¢., 135 s.

Me oa a 0k vcs a ceinl eee .

Gibson v. “Phillips Petroleum Corporation, 17 8. Ct. ce

Sos DLE, eS ae Pere Oe PEE Eee = 6,10

| Griffin v. Illinois, 351 U. 8. 12, 76 8. Ct. 585 vivewn Bag

Kern-Limerick Ine. v. Scurlock, 347 UU. & 110, ~~" ee

BNE’ UR, 410 oe ees 9 TS

Lavender v. —— 327 U. S. 645, 668. Ct. 1). ae ie : the | ;

: Massey v. Moore; 348 U. S. 105, 758. Ct. 145. me 3 9, 11, 13, 22."

McAllister v. United States . of sete § 348 Uv. S. ,

© 19, 75S. Of. 6 pees esereeeeee, wivikeaw lea see I 12

; 7 es

. PAGE « .

: a

«Jf

| a

, iii. :

| = | PAGE

Re Mevdinn 349-U. 8: 133, 75 S. Ct. 623, 625:...°. c:) 7

Mullane v. Central Hanover’ Bank & Trust om-_ 2 elas

pany, 339 U. ‘S. 306, 70. S. Ct, 652, 657 sede Tee eee }

Pennsylvania. v. Cloudy, 350 U.S. 116, 16 S. St. 293 | : hee

Porello ¥. United. States, 153. Fed. 2d 605, aff'd 330 aS

oR BO eas by a cede eae aie! i z

Powell: v. Alabama, 287 U. S. 68 53°S S. Aas

Page 64° weeks 8 8 ais igi teens xs at oe

corgia; 850 U. 8. 85, 76-8. CL 167 aces = 9

oct Seon i v. Missouri: Pacific Railroad an ant + Sea ee

_S. aS 443, 450) xm Chae can ‘Javea (ee alg 21, 23

Ryan Stevedori ing Company, Pan Atlantic Steamship | ‘ | of

-f Corp, 350 U. 8.124; 76'B. Ot, 282 vs. fee peers. 10/4":

: Ne ‘Schulz Vv. Pennsylvania Railroad Company, 350. U. gs. oe es :

-. 523, Pe OO. Oe i aes ss 5.4086, £1, i

“Sloctun v. New York Life Insuranee Spend ame ey

8. Pee Ste i eek oes Sy AAW Ge eS prem 9

"Tennant v. Peoria @ ¢ Ry. és: 321 Hs 29, 64 5 ct. 8

~ 409 Si Mh cea kak ous ce Oh A ou

‘United States 1 v. Morgan, 346 U. s: 502, 74 8. Ct. 247 7, 9.

Walker v. New Mexico & Co., Railroad Company, 18) it oie

ay he Re eer ) PN Ee CEE TIL | ar ey Lap 7

Webb v. Illinois: Central Railroad Company, .--

OR OR: be Se eae Ofte S%, oii

"Wilsnien + v. MeCarthy; 336° U. S. 53; 57, 69 | 8. ine naa.

413 beeen est eens, poe aseie gs» Se swanyeArys 11, 22 -

ee yo ie: Oren en

ef ’

“s os

& : ai : \ “

| Supreme Coart at the ited States

October Term, 1957

° DD

a No.

0 r% La

Anne E. Boise: ULTZ, as ‘Administrateix of the Goods, Chattels, » 4

‘Rights and 1Credits which were of John C. Schultz, and —

ee _as Administratrix Ad] Prosejyueniiamn of John C: Schultz,

deceased, > :

ae se ’ “Petitioner,

VS. Fae

: Homer On Company, a cérparation,®. 7

Sd dhe ie | "Respondent.

_-.PETITION FOR; WRIT OF CERTIORARI TO THE

: SUPREME COURT OF THE STATE... -.

| , OF NEW JERSEY

Anne K. Schultz prays that a “writ of certiorari | issue!

to. review the mandate of the Supreme Court of New

__, Jersey entered in the above: entitled action. on the. 20th h day

of June, 1957. } a Oa

Opinion Below

“There. ‘was no opinion. by: the’ Sdorime Court of the

|. State of New Jersey. ahat Court denied the Petition: for

Certification of Anne BK: Schultz, as such administratrix,

to the Superior-Court, Appellate Division, to review a final —

_. “judgment of the: Superior Court of New Jersey, Appellate

~ Division which ‘affirmed a. final judgment :of the siete

Court of New J ersey Gisntiasing the plaintiff 's cause of .

ae action.

<3 .

4

* 4 a

The opinion of the. Superior Dea Aipellaté Division

of the State of New Jersey, not officially sameness as yet,

is. annexed hereto. Ras tyes A 1

e.

‘

|

Jurisdiction

‘The jurisdiction’ of this Court: is . invoked under Title

| ®: U. 8. C., Section 1257 and Rule 19 of the Revised Rules

of the Séprane Court of the United § States.

. Question Presented

. g. Is the dismissal of a case predicated on ‘injuries, and - .

eventual death caused by .a gasoline fire &hd explosion ~

an arbitrary intervention and usurpation of the vested |

right of a trial by jury guaranteed by the New Jersey

State Constitution, in contravention of the Due Process

of Law Clause of the ‘Fourteenth Amendment ofthe Con-

stitution of the United States, where. a tort. féasor is a

corporation engaged in interstate commerce in the sale -

and transportation of gasoline and its storage within the. ; .

. eity limits, when evidence of fault is established .on.

-- uncontradicted evidence and opinion testimony by a fire

chief having over 25 years experience?

ie ee

| " Jeeeaaee for Chrting the Writ

; 4: Fourteenth Amendment 8f the United States Con

stitution. ia SAGAR RF

Due process of law chds been denied petitioner by the

lowér ' Court’s “arbitraty ‘refusal to grant her the right

guaranteed by the Constitution of the State of New J ersey

* a trial. by jury. pea aS | | de |

a Se ee ee See) ee ae ee ee TP

Li - ee Be ee

,. a = * » »_ *

a & safety of every person in the United States

where gasoline is used, is involved, in direct proportion

“to the legal responsibility for the manner in A which gasoline

ae —— and stored. |

a

~ Statement

¢°

Gem E. Schultz, as Administratrix on behalf of her-

3, 1945, Caroline, born January 25," 1947, Donna, born

a anuary 23, 1948 and Joanne, born June 13, 1953, respect-

~. ively claimed damages for. the wrongful ‘death of her

husband John C. Schultz arid for conscious pain and suffer-

ing from the date of the accident January 23, 1953, to the

date of his death April 20, 1953. |

~ The deceased was, 32 yonen of age at the time of his

death. | . cee

7 a. Janygry 23, 1953, there was a ‘flash fire” or

_ explosion at a gasoline service station known as “‘Tubby’s’’

my “Schultz, an employee of the lessee: of the station, was .

>. hurled frm within. the’ building through the plass front.

which: he died about three months later after indescribable

. suffering. |

_ The bation 3 was alana = Joaaph De Marco, ander

_*a Tease- agreement with the defendant Home Oil Company, |

which furnished all the ‘gasoline and motor fuel sold by

De Marco, owned all the outside fixtures and a substantial

_ inside the one story building, and four underground tanks

which had been installed in 1940. a

At the clase of the entire case’ the trial court dismissed

the e-ae ( —

) e@-

self as widow and her four children Charles, born September -

_in Paterson, New-Jersey, as a result of which the decedent — .

‘of the service station (P135a) causing terrible burns fram~ |

part of the equipment, ‘including a:compressor Jocated: ~ .

: to the Appellate Division of the Superior Court of the

aoe |. witness’ testified that in his opinion -the-flash fire

4°.

From the judgment sntited thereon olaintiff appealed

State of New Jersey which affirmed the judgment of the |

trial court’ on the 11th day of March, 1957. . a

oe The opinion of ‘the Appellate Division is saiesnd:

hereto. }

* Plaintiff then étitioned: the Supreme Court of. New

_Jersey-for certification to the Appellate Division to-review -

the: judgment of the Appellate Division affirming the

. ‘Superior Court of New Jersey, which petition was denied,

"without opinion, ‘on June 20, 1957. 3

It was urged by plaintiff before the trial court und |

_ pbefore.the Appellate. Division that the case presented

. questions of fact for the determination of a jury.

| It was urged by plaintiff i in her brief submitted to the

Supreme Court of New Jersey with her petition for cer-

tification ce : ;

te 1: that a trial court iced not remove a case

from jury consideration because in its opipion the

_ testimony of a factual and expert witness seems to_

‘it to be i mprobable. |

| fal: court_should give: the plaintiff o

every legitimate inference the circumstances of the -° J

case reasonably support where plaintiff: was unable

to explain the cause of the explosion bécause-of-the

death of the only person having aaa of just

what occurred. po eee at Daas

3. that the trial court should not remove a case

co from jury: consideration when, a factual and expert

was proximately caused by gasoline fumes escaping

- | from a vent ‘that was. so constructed - as: to be

.. dangerous in use and that the flash fire cmeuces

_ due to this very danger.

? .

4. that the trial court should not hatin ite opinion = —

. that testimony is merely speculative and conjectural -

_on ‘the fact. that an expert’s opinion. does not rest

upon the direct proof of a fact but rather that the

‘Court should leave for jury consideration the proof -

_of circumstances including the elimination of all other

| st a likely cause.

!

It was ‘urged by plaintiff in her. brief ie’ certification’

_. that fhe: decision of the trial court was contrary to the

~ Pennsylvania. Railroad r VeeNe. 350° U.S. 523 Sunes

) such brief.

-general rules- of law for jury trials in negligence: cases

as enunciated - by the opinion of this Court in Schulz v,

p. 15).*

It was ‘farthes virdiedl by plaintiff i in a brief (p. 16,

et seq.) that the decision of the law court was contrary

to the. decisions of the United States Supreme Court,

particularly McAllister v. site States * ae, 348 -

'U. 8."9.. * |

re

‘sources and the proof of the alleged source together it

with proof of circumstances that 1 in his opinion made.

This argument was “advaniced under ‘«Point m1” of

« et

“<“The decision of the court below is in? Sdirest: .con- .- >

flict with established eal (brief, Pp. 16).*

* This brief.j is part of the estilen for Certification to the ease

| Court of ooted Jersey which is Part of the record herein.

</

7.

j .

ARGUMENT =.

« POINTI

ja Plaintiff was denied her. fnslicushls ‘ake 6 to have

the disputed | questions of fact. determined by a-jury,

a right given her by the Constitution of the State of —

New Jersey. : |

The Constitation of the State of New ‘Jersey gives the

plaintiff the right of trial by jury. Article I, Section 9.

It is elementary ‘that the plaintiff i is ‘entitled toa trial

by J jury as a matter of right. | “Gs

In Rogers v. Missouri Paci Railroad Cone Y, 77 ; ie

Ct. 443, 450: 1

“this court is vigilant to“éxercise its power to review

in any, case where it. appears the litigants have been —

apreery. deprived of that determination. ae

| In ‘Schulz v. Pemns Sylvania Railroad. Conibanw, 350

U.S. 523, 76S. Ct. 608, discussing the: right to jury trial

in cases the court said: 7

“<The Seventh Amendment to the ‘Kisisiitiibiis pro-

. vides that ‘the right of trial by jury shall be pre-

served, and no fact tried-by a jury, shall be oval

wise reexamined i in any Court of the United States,

than according tothe rules of the common law.’ We

- . granted certiorari to consider the failure of the Dis-

: trict Court-to lét this case go to.the’j > Jury. ae.

4

‘To the. same effect:

Webb v. Illinois Central Railroad d Compan y, 17 S.

Ct. 451.

Ferguson Vv. Moore-McCormack Lines Inc, Lie S.

Ct. 497.

Ct. ~

Gibson v. Phillips Petroleum Corporation, 17 Ss.

‘POINTIT , ?) ae

: ‘Plaintiff = been Pee her sical rights —

in that the right of trial by jury guaranteed by the

_ Constitution of the State of New Jersey was refused; —

in that the trial court arbitrarily invaded and usurped :

the very function of a jury and assumed to pass upon

the weight of the evidence and credibility of the wit-,

-nesses contrary to the Fourteenth Amendment of the

- Constitution of the United States.

<=.

: The Fourteenth Ansenaemeni to the United States ‘s

- Constitution provides that no State shall deprive

stan person of life, liberty, or property, =<

| due process of law.

“The United States Supreme Court has Setneres zeal-

-’. ous in its determinations that all oe shall have due. |

" process of law. | eS Rig

is Powell v. Alabama, 287 U. S. aS 53 S. Ct. at page

“Tf in any ease, civil or aii a “state or federal

court were arbitrarily to refuse to hear a party by.

- counsel, employed by and appearing for him, it rea- _

sonably may not be doubted that such -a- refusal.

_ would be a denial of a hearing, and therefore, of. due

“process 1 in the constitutional sense.’?

_* excerpt. from this ‘decision was quoted from at.

length 3 in Chandler v. _Fretag, 348 U.S. 3, 75'S. Ct.1,5.

Tn United States v. Morgan, 346 U. S. 502, 74 S. Ct. 247:

‘<Tn behalf of the unfortunatés, federal courts hina 22

act in doing justice if the record makes plain a right

to relief.”’

a In ‘Kein Linicick Ino. v. Scurlock, 347 U. S. 110, 14 S.

Ct. 403, 410:

the ele rests on this Court ‘to detide fis itself

facts or constructions -upon which federal eonstitu-

tional issues rest. ogee pete gee :

———

pies” ¥ 4 2

~~

8 : |

: I . ~~

Litigants in ‘civil cases are afforded the protection

of the’ due process of law provision of the Four-

. teenth Amiendment. | 3

- The faaprens Court recognizes no distinction between

civil and ¢riminal cases in affording the protection. of the

due process of — of sthe Fourteenth Amend- . as FE

4 —— ment. Aa ae re tte

In Powell v. eh in 287 U.S. 68-69, 53.8. Ct. at awe

64 the Court applied the doctrine of due process of law ‘in

@. .. amy case, civil or ‘eriminal”” whether the Court be. “state

or federal.” a oa

In Cavey v. Town at inaiic' 351 U. S. 141, 76 S. Ct. 3

_724, the eourt of Appeals of New York upheld the judicial :

foreclosure of. tax liens on property owned by incompetent

without the protection of a guardian to proteet the interests"

of such incompetent. This’ Court held:' ~

“we must hold -that idapihtoie with the statute

would not ‘afford. notice to the incompetent and that

,’ @ taking under such circumstances would be without

due. process of law.”? -— |

, ‘In Mullane v. Central Hanover Bank é Trust Company, |

339 U. S. 306, 70 8. Ct. 652,/657:

Shaws “when notice’ is a person’s s due, process which. i is a

eae mere gesture is not. due process. ° 3

oo Re Murchison, 349 U.S. 133, 75 S. Ct: 623, 625:

oA fair trial in a : fair tribunal isa basic requirement

of due. process.’ : W |

| aa ae oT

_ ment has protected defendants in criminal cases.

te Supreme Court has rigidly enforced the provisions

of the Fourteenth Amendment that defendants in criminal -

eases shall -not be seperet of their aiherty without. a. se |

_ process: of law.

Pe 5 ee ste

. ‘ i) - . t -

In Sa v. Geersi 350_U: 8-85, 76 8. Ct 167 :.

“eT he oan Oe of counsel in sich a case

is a constitutional requirement of due process which :

n& member of the. Union may eunegere. 6

In Pennagteahia v. Cloudy, 350 U. S. 116, 76 S. Ct. 223:

“The sound premise upon. which these holdings

rested is that men incarcerated in flagrant violation

of their constitutional rights have i a remedy.”’ |

To the” same effect :

. Griffin v. Illinois, 351 U.S. 12, 76 Ss. Ct: 585 ;

- Chandler v. Fretag, 348 U. S.-3, 75 S.Ct.1; ..

_ Massey v. Moore, 348 U. S. 105; 75 S. Ct. 145;

U.S. v. Morgan, 346 U. S. Pa. BS. Ct. (247.

| Under these decisions construing the right of the plain-

this Court must determine whether the plaintiff was ‘af- .

- forded a fair-trial as required by: the Constitution of the —

“State of New J ersey granting the plaintiff a jury trial;

_ and whether the dismissal: by the trial court -was a denial

to the plaintiff. of due process of.law. _

In Slocum ‘v. New York oe. Insurance Company, 228

te his 364, 378:

- "The trial by. jury is shatly: bine to thie American

- golicitude, and‘ every enavenmnenent ar it has been x

= watched with great jealousy.’’

a In Walker v. New Mezica #3 fee Railroad Company 165 .

US SB. &

2 = ‘This requires that questions of fact in common la

‘ actions shall be settled by a , and. the court

-—. ~..shall not assume directly or i ireetly ‘take from

| the eS Se ee ——— =

tiff tothe protection of due process of law in civil cases, . _

_ people. -It has been an object of deep interest and —

ee “Decause of the diversity was a decision comparable to a de-

' . may be more than one cause for an accident, the defendant

10

-This Court i in recent decisions has: athell: the right of

the plaintiff to kgve the isstes determirfed by a jury.

.- In Gibson v. Phillips Petroleum Company, 77 S. Ct. 16,

—the judgment of the Court of Appeals fo ‘or Fifth Circuit was

reversed and judgment ordered for the plaintiff: A read- —

_ ing of the record (232 Fed. 2d, 13)-discloses that the plain-

» tiff was injured ‘as a result of an explosion, as in this case. -

In that casé a8 in this, there were no-issues other than those

of state (Texas) law. |

While the decision of the Fifth Circuit: Court of Appeals’ 7

‘eision of a state Court of Texas (Erte Railroad Company v:

- Tompkins, 304 U: S. 64, 58 S. Ct. 817), this Court deter- |

‘mined that there were issues of fact involved and vacated

the judgment ‘of the Court, of Appeals and reinstated ‘the :

judgment of the District Court.

The basis of the decision of the Appellate Division may |

be suntmerined/42 £0 OG 4 ; ‘ ae

‘*Here, had the saube been ‘Gubeadhted to the jury

for determination.it would have had to speculate not __.

on- probabilities, but on mere possibilities. There®

-was no proof of what &gency set in motion the forces.

that gaused the injury to John*Schultz, and hence -__

proximate cause would not legitimately have been —

inferred.”’ — 8a). oat ve

The record must be cndminad ‘ lias the cause of . |

the accident and the probability thatthe conduct of. de- :

_ fendant: was a proximate cause of the accident. |

It is the fundamental law of this Court that where there

may be held responsible if his eonduet became and was.

one of the causes of the accident. : |

Porello v. United States, 153 Fed. 2d 605, aff. 330 ;

~ U.S. 440. »

Ryan - Stevedoring - Company v. “ Paw-Atlantic ni

_ Steamship ee -390 U.S. 124, 76S. ta 232... Tie,

ee eae

-

rot the obligation of a enue to prove the precise ‘cause:

of an wis sake }

It is likewise the fudamantal. Sule -of- law that it is

Schulz -v. Uoaneyloneia ‘Ratiread Company, 390 |

TTS. 52876 BC GOB, hes |

“Rogers v. Missouri Pacific Railroad Company, 17

- §. €t. 443,

- Webb v. Illinois Central Railroad Compan Y> 77 8.

7 Ct. 451: Be |

' Wilkerson v. McCarthy, 336 U. 8. 53, 51, 69 S. Ct. ee

«413.

_ -‘Lavender.v. ‘Kurn, 327 U. s. 645, 66 s. -Ct.. 740.

McAllister v. United Sea, 348 U. S. 19, 75 Ss.

Ct. 6.

: : * Tennant V; Peoria P: Ry. Co., 321 v. 8. 29, 64 S. a

7 Ct. 409. 3 3

In Schulz v.. Penns: ylvamia Railroad Compari Y> apne,

vat ‘page 0263. a

“But the courts below. Dek this case from the jury.

because of a possibility that Schulz might. have fal-.

len at a particular spot where there happened to be

no ice, or that he might have fallen from the one

boat that was partially illugtinated by shore lights.

court allowed it to perform its function) but it could

not have been compelled to draw.such inferences.

_ For ‘the very essence of its function is to select

that which it consic ers most reasonable.’ Fact find-

ing does not require mathematical certainty. Jur- -.

ors are supposed to. reach their conclusit ns on the ©

_ basis of common sense, common understs -and .

fair beliefs, grounded.on evidence consisting of di- —

rect. statements | ‘by witnesses or iy of cireum-

stances from which inferences ¢ can sal be di wa. ™

aa

Doubtless the jury could have\so found (had the |

from among confli ting inferences ; conclusions. :

. |

* Webb \ v. WMindis Central maRrone Compan Y, ‘supra, |

at p. 454,:77 S. Ct: 's ree

“That ‘there. were other nee TN sources of the

‘clinker would not, of course, justify a directed ver- as

_dict.in the light. of our conclusion that the evidence _

oe - supports with reason a jury finding that the re-._

_ spondent. negligently caused the plinikes to be in the

ballast used in the repair work and: failed to use

proper care to. discover and remove it. Indeed, we .

do not think that the evidence would’reasonably sup-.. |

port a finding that the — came from snpuier a

source.” — ; } ee

In McAllister v. United States, supra; at page or

“Of course. no ‘one can. say with. certainty that the _

Chinese were the carriers of the polio virus and

that they communicated it to the petitioner. ia 3

In Rogers v. Missouri ener Railroad Company Y, supra,

at page 449: | | |

“The burden of the ‘Aipboues is sient. cia the obli-

+ be. aig

gation of the employer to pay damages arises; when ~—

_ there is proof, even though. entirely circumstantial,

S which the jury Faas with reason » make that m-

erence.” gh

‘The rationals. of the ‘daciaion of pret Appellate Diviston- :

as to this specific issue-as to the activating cause of the

accident i is reflected by its oe. | ie

“The plaintiff g' theory ofothe cause a the envidént - =

- was that fumes from the outside entered the build- _

_ ing and were ignited by sparks from the air com-

' pressor. - However, no one ave testimony which — :

-, would support such a theory.” (Op. ‘P.. 4a).

The testimony shows, as the opinion. states, “that there.

was an air compressor in the room at the time of the acci- —

dent; that while’ Davenport. was in the room after the ac-

: | SS

a cident, the compressor weit on and he noticed that it arced

The opinion also recites that the scorching of the under- 4

side of the bench above the air ¢ompressor ‘‘in all proba--

‘bility would have been had oe from the compressor -

eatsed the. fire’? (Op. 5a).

| | The opinion demands proof: as to what caused the acci-

/ dent for it states that Davenport Dat

‘did not specify. what | ignited them ee umes) 3

— fa)...

—

‘The opinion of thes: Appellate Division petabed to. ac- = a

cept proof based on circurastantial evidence. It demands —

direct and positive testimony as to what started the: explo-

.sl6n, a doctrine contrary. to all of the rules, of . law and evi- -

dence in Hegligence cases. REO

. The record is to ‘be examined for the proof that satis-

fies the requirements of this Court to permit the plaintiff Bo

to have her rights determined by : a jury.

ate Certain facts must be conceded:

| ms

deceased ;

ice: station;: ~~

a an ‘edplogion caused the i injuries and =“ 7:

-. the explosion started from within the vers |

| the explosion was ‘caused by. saneline fumes :

4. "circumstantial evidence proves that the’ fumes

were ignited by some cause within the servieg < a

station.

ae With these basic facts scughe, ‘<‘ main issue of. oa

case j is limited to the “—— of: the explosion, mer se) as t “~*

whether Bae | ee, as

4 2

/ Rae .

. * . ° »

. ~ ? nm; be -

. / , e . .

z s 5 . ‘

. : . “ | .

. . i

- . ; . a ‘ os

- a bad . z

ns ° . J

* 4 . > -* ” bn . od ‘

. : é ‘ - e

oN

.: aa an’ mi,

1. it came from fumes which necessarily had —

ae their origin within the building itself immediately -

_ before the accident; or :

| a it came from fumes that came into the « service

station from outside. the building and entered the —

. room through. means and from causes testified to by .

witnesses of the plaintiff...

>

a ‘The fumes) that caused the explosion did not originate :

- within the building. | | 2

~~ This statement is proven by the tegiiniey of witnesses

with knowledge of the facts. _ oe eat

De MaTto, the owner of the station, testified that he |

* left shortly before the accident and

“that when he left the station, there: were no in-

. flammables about, nor any open kerosene or gaso-

line cans; and that there were tools. to be cleaned.”’ .

(Op. = 7

Detective Dworak made an inspection of the premises

to. determine the cause of the explosion; he found nothing

that would be suitable to contain any liquid such as gas or

anything of an explosive nature (P126a).. ;

It was conceded by defendant that the witness, Detec-

- tive John Parr would havé given. the same testimony as

the witness Dw orak (P132a). 7 mG °

. 2 ——i

—<—$—————— ae

Deputy Fire Chief kate testified that thes were Ss |

no volatile liquids i in the one or two, pans that were in the

. *\station at the time he arrived ther&shortly after the ac-

ee cident (P56a), that the fire was caused_py ‘gasoline vapor .

and that the containers were not involved in the explosion

(P56a); that the ‘flash fire. was due to a vapor and not

oma fire that had soaaclaesicta le in an open vessel”’ ' (P58a).

| . oe

that the charring over. the entire area was - ‘up as high as .

the ceiling and all tfte way around ( P60a).

‘Now, if there was gasoline in a nlaheas: the burn-

ing would be in this area. It would not cause a

charring in that part of the room.’’ ’ (P60a)

“There is nothing in ‘either of. these two plstiores

which would indicate that the fire in this portion of-

_the building was a fire peor ce J from an open eon- —

— rts (P62a)

- There is no discussion ‘in the opinion of the Court as 5s to;

any conclusion from their statements that the fire could™ cS

not have. originated ' from any container. within the “service

stafion. ~~ A Se : , |

= 2.. The fumes originated. éaibhé the building oil came >

_ into the room through vents in’ the windows and cracks.

in the doors. . : .

This: conclusion is based upon wg testimony of fhe ;

Deputy Fire Chief Davenport. - )

' The opinion ‘of the ‘Court has varicusly characterized |

his testimony. It states:. vo -

. “Because he found no evidence of volatiles inside

-_ the building, fe testified that any fumes must have

@ emanated from the vent pipes, but he did not specify

‘what ignited them. He did not qualify as an expert:

in chemistry or physics, nor as a witness on gasoline .

tank vents; so his opinion as to defendant’s neglt~

gence was-at best of little weight.’’ (Pa) :

‘‘Davenport’s testimony as to what path: the vapor —

followed after it left the vents, particalarly in view

of his admission that he had made no tests to deter-

‘mine 'the amount of vapor escaping, or how it got

into the interior. of the building was definitely in the

- realm of conjecture and speculation. He gave no

"evidential support for the hypothesis that the vapor .

seeped or flowed into the building. through the ven-

tilation holes or under the doors. All these’ factors, —

- tion of the jury and passed upon the weight of his evidence |

-“end-result of the panne of the witness, armen, 3 did

_

>

¢

a

‘added to the highly dispersive. watare of. all vapors,

even instill air, muchi less in a ‘‘drafty leyway’’,

_ > make Davenport’s explanation not only htghly fanci- -

' ful but almost incredible. is (P8a) | . :

| - other ioords, the courts arbitrarily adeanied the func- }

and the credibility of the witness. -

‘However the Court, in its’ opinion, while critical of the

3 admit:

: That he testified that the fire was leaitslinéely -ex-

‘tinguished, that it was a ‘‘superficial fire’’, a “flash

fire’’ involving the whole area instantaneously with

no deep penetration of the flames; that all the win- |

- dows of the station had been blown out, but that

_ there were one or-two pans which looked as if they .

could -be used for. volatile liquids, he found on. in-

spection no indication that they had recently been

so used, nor was there any volatile substance within

the building (P2a) he stated that in his opinion the

fire had been ‘‘caused by gasoline vapor in some man- _

‘ner, shape or form’’ and concluded that since there

were no volatile substances within the station, the

” vapor of fumes had come from the outside, where the

onl =e possible source was.vent pipes leading from the

: erground gasoline’ tanks- (P3a). es eS

He also stated that in his opinion the famee en-

tered the interior of the office portion through cracks

‘in the bottom of the two doors and through a series

_. of ventilation .hales in the wooden frame of ‘its front -

- .and side windows, which holes were about three or | °

four :eet from the floor and. each about 3/16 inches .

in diameter. In support of this theory that the gaso-

line vapor came from outside the station, Davenport .

testified that if the fire had been caused°by an open |

container of gasoline, ‘there. would have been a.

charred’ area in the floor under. the: container, but _

that no such charred area was found (P3a).

‘When asked if it was probable or possible that the “

fumes came from the vent Pipes and entered the

ventilation belie at the hettinnn of the window frames

and doors, he ‘answered that it was ‘‘reasonably

‘.probable’’; and.again when asked the same question

; he said, ‘‘ Yes, it is possible. »? (P3a)-

‘The above are ‘idialesltes: of the Coiirt i in ‘its opinion.

. The record: shows. that at the time of: the trial: Daven-

_ ment, that he was first employed i in the department-i in 1932,

‘was promoted to captain in 1942, drill master in 1946, to the

battalion in 1944 and. battalion chief in 1946. That he had

studied for and passed competitive. examinations. from .

which the city authorities made appointments-to.the,various |

ranks; that his studies had Meluded volatiles (P43a), and -

| particularly gasoline fires that he attended about 7500 fires

and that about one thousand had involved gasoline fires

.. . (P46a) ‘and that it was his duty to determine the cause ~— :

‘the fire is out (P46a).

That he arrived at the fire in question sini 90 sec-

onds after the alarm was given, arriving there about 6 54

P. M. (P47a). 3

a... testimony given at considerable length convincingly

a oo oves that there was only a flash fire as he stated:

»

“Itisa matter of judgment, itisa matter. of going to.

. @ fire and seeing them, and P be u can determine,

‘through experience, whether a fire

-. . in.an open vessel, gr a fire -has been a flash fire due ~

~ to a vapor.”’ (P58a). or ane

J- °. _ -**This picture does not show the presence of any such -

containers which would also support. the conténtion

that it-was purely a flash fire and was not. a fire from —

' . gasoline-in an open container.’’ (P62a) - :

a Counsel for defendant was intent in ad to con-~

fuse the witness during his entire testimony as the record

@ - Shows but these positive statements were made.

“T have determined, Sir, that evening that the fumes

that were in that building could not have come from _

anything-that was 3 within the — ™ (Ete)

“oe

port (P44a), 48 years ‘old, was. deputy of the fire d part- -

has been burning °

Mea =

“ I could wit come to a positive conclusion where they

__ did come from, a positive factual conclusion. I.

an opinion where they came from.”’ ‘(P64a) :

«Tt came from. some. other part of the building, some :

- other place than the place that was on fire. It did. ,

— not come from the building itself.’ ”? (P65a) |

“Tt is reasonably probable, in my. opinioa, that the

fumes come from the vent pipes adjacent to the.

building on the left side facing it.’’ (P65a)

- “The only possible source, in my opinion, ‘of those

fumes was from outside the buildmg, the vents: «6 —

_ % ‘* * : aS .

The only possible source ‘of these gasoline fumes in

the building, in my opinion, are the vent pipes ad-

“8 jacent to the. outside of the ne sis (P66a)

A reading of the rest of the direct. examination of ‘the

witness establishes he testified that the fumes came through 3

~ the vents. in the windows (P68a, P72a).

* The witness ‘said that the fumes came from the vent

‘pipes which had been extended fr om ag: tank’ to diffuse

the gases that came t Lerefrom.

“Tf the vert pipe was so located that it was below

the roof and on the side of the building, on-the wind-

ward side, the fumes would have to accumulate ad-

jacent to the building and:from the direction of the

wind, the direction of the building, the vents n@be-

ing properly - constructed, the fumes would enter .

into this show_room or. this office room:. There was _

no possible . source of gasoline © vapors inside the .

building, in my ‘opinion, in my determination, the

years of experience as a fireman, those fumes had |

_ to come from some place. It came, in my opinion, and

I stated it is only an opinion, from the vent t pipes. ise

(P67a) ee.

‘<The vents were too low. They ‘chould: have “been

above the roof, period.’’ (2a; *

12)

ae *

19

The ‘trial ‘court properly stated ‘the testimony of the —

witness:

as Court: No. That i is different. - I allowed |

that. He has already told us that it didn’t properly . -

diffuse the gases because it didn’t come above the

roof level. I don’t know what more he can say.’

(P76a) . a ae |

During the cross- examination cvinneil for defendant

attempted to confuse the witness and attempted to draw

‘the distinction that the witness must. ‘testify. to absolute

. facts and not an opinion drawn from the facts themselves.

The witness explained his testimony: i

“My opinion, sir, is my own, and I got twenty-five oo

years ofyexperience and I am entitled to-my opin- |

ion from my years of experience-as a fireman, but

I can’t put —— on paper, and you. mnow I< can t. se

- (P83a) . | |

‘ete was ‘auddinalin discussion during. the. cross-

examination of the witness as to Se and prob-

“abilities but the: witness’ testified :

| uy will have to state, sir, it was, in my opinion, a

was reasonably probable that the ‘gasoline | — :

: entered the building by that means.

| Soe Court: All right.” se (P87a) ©

-. > There are some , TS epages of testimony given by the wit-

ness Davenport. He made the distinction .as to conclusions _

drawn from the actual visible facts ‘and conclusions drawn

from his opinions from the facts.. He testified many, many

times as to probabilities of causes but throughout his —

testimony. he insisted that 'there was nothing more than a

flash fire,. a fire that was immediately | extinguished and

one that was not caused by. any. volatile substances within

-the station.

The opinion of. the Court. picks out sinbinats that jus-

tify the conclusions drawn by. the Court’ which are other

cs

“

Se quiry Or inquiries.

ee holés’i in the windows downward't

: ail Gillccaat nin other past of |

nesses. There are statements as

*’ sonable probability *’ has <a nsv

... Under such circumstances “a weight of of the testimoriy

, and the credibility of the witness are qocutions fee | a iery «

_, not the Court. | i

- he Court in its opinion nasil ac

‘upon the plaintiff that it must.

. of the accident, the. precise .

_.Tenee, must show with mather

ant is to blame for the injurie

a burden specifically rejected |

Pennsylvania’ Railroad Comp as

o* Fact finding does not

“tainty.” 3 |

. fa) =

ot The exhibits ‘attached to the |

‘in the frame of the window (

_ vents did not.come to the top ¢

likewise that they were cappec

One other corroborating i ite

of the nurse Dolores Stowell th

_ back from the hips down, m m

_ the site of the burns was- fre

: The law. ‘as to probabilition ’

been thoroughly diseussed in cent © .

Ae this Court said ‘ in Schule v. Penn.

ie Company, supra: et

- “In saiitiiactng: the scope « i

| juries” in’ cases like thia, it: t

‘tn Gat Ear Ue Cecil Certegy Gacaneed tes Sf.

ferent. probabilities as to how Schulz came to his death

eae motiasion vee connie’ Heat, the leas

mest he Aatermnined Oy 0 jery--

rv United States, 8 U. B19, 1S. ot.

A : ‘@, tf ee

a tae | 4 $

y that the

Be * >

a =O

- In Wilkerson v: MeCarthy, 396 0. s. 53, 69 8. Ct. 413, eee

- | a

’ - & Courts. should not: assume ‘that in ee aie

these questions of negligence juries fall short of 8 a

fair performance of théir conetitutional functions.”’

The Schulz and MéAllister cases, supra, cpver. the law

as to probabilities and proximate cause and these decisions: :

: crea eefem ‘Se. contentions of the . cl in 1 this .

case. = ~ x fs

. ml . ~ ss - - - . 2 . . . 7. :

. a > - 7 - ‘¢ 2 . : 3 .

‘ « . a . .

~ . . - . . Se - - er L Td a ° .

7 e \ - yr — - ° 5 te - . « sz ’ :

x ! ~

, a q ted Sas

—— :

oo . i) -. es .

Te Pog . -

is = .

7 ‘2 si

.

< - >

a —

sy ee a ae oe a —— os cia iad : 4 =

Ree eae tee le ee ey we Siig ia bia =r :

9 aaa at Eee — a ' F

an ™ Le that is i is not necessary ‘that the. precise axat- ie

a ing cause of the Lneemenarsd must be 2 Broven by direct |

| _ evide got ee vee a atin ,

ee

my s nae “

eg eat Oe. Bee aes i

ee ee ee Sg es -

Le ee eee

a

es Ge ley O Potent tat Ger one”

em the

_ ne eee Oe eer. | |

ws been raised | as to the he ality of thie -

t of not

.s . -

ithe 18°

ae 5 i

- P= ae, |

= .

a Be bo ry

Fractal - = “

aa

ee _ an i ra

2

.

. é

. : Ay

« : S a a

ie - e& ahs es

¥ + 2 Me 7 > .

‘ . s sf cmb . > :

“4 . > j

. a ae ; ; ; q .

» ‘ E Mn : 72 2 haa + : ee . .

‘ e ’ 3.2 i er. . “ar | .

ae : ; Ga Pees

: ee oe es :

Court for the ranting « - a: writ |

“ ‘Special and important’ ‘ reasons: ave an shown to

«justify the. granting of a writ of. certiorari in this case

because - ee ee ee eee a

‘weight of the evidente and the edits of 7 :

witnesses ;— eet y ee

4. the courts have denied the Psat due process of |

law, teed by the Fourteer pbmendment a

= oa aa sa

te 3

Bc: The | primary , ippecial ant 4 tinportant” F reason lin that: ©

; the safety. of every person in the United States where gaso-

* jine is: used, is- involved in direct proportion to the legal

responsibility for the manner in vr oh com is trans-

sid ported and stored. : =

. >The - of: hi e_ tria ri | court and the opistion of the

ae

OS wey

ie muse “ her er 's aeth, i where |

no eye witness. and where the uncon-

tradictable evidence supported by the

iy a fire chief. having over 25 years

i the proof necessary to have the

a’ jury as required by the Constitu-

t New Jersey and as guaranteed by the

iment of * Constitution of the: era

8

aid i in | Re Murchison, 349 U. 8. 133, 136, ae

Ee

N

.

lin’a fair tribanal ‘i is‘a basic require- eG

process,” | et oe

q CONCLUSION i:

\ ow @

ees yoing reasons, it is 5 respectfully ae

is F tition for a writ of. — :

a . ,

\:

\:

€ spect eubinitted, — Seer

Be J ACOB RassNer, . 3

ttorney jai Petitioner.

il ad

APPENDIX A, vo

* Oia of Appellate Division i : |

pena" February 18, 1957; decided, March 11, 1957. ae

ue : Before Judges Goumaxx, Farunp nie Coxvono.

se Mr. Harvey G. Srevenson: argued the cause’ for. the

Re “ plaintiff-appellant (Messrs. STEVENSON, Wnasrre & ies

oe} -McDermrrr, attorneys), = |

Mr. Pur M. LUSTBADER argued the cause for the a“. oS

_ fendant-respondent: (Messrs. ScHnemér, LustTBabER

& Moraan, attorneys; Mr. Gzorce H. Hanaavon, of

— . A ; sia

3 “The opinion of the Court w was delivered by | i 7

-Farunn, J. A.D. | |

This i is an siuas feta: a ; jadgment of incline dis- :

-» missal entered: upon defendant’s motion. at the conclusion ‘~

_.of the-entire case. A similar motion made at the close. of —

_.. the plaintiff’s case was denied. rote a

| The plaintiff sued to recover damages for bid hwéband’ aN

injury and subsequent death from a. ‘‘flash-fire’’ or explo- i aN

sion at a gasoline service station known as’‘‘Tubby’s’’ in

Paterson, New Jersey. The station was operated by Joseph:

DeMarco, under a_ ‘lease ‘agreement with the defendant, .

Home Oil Company, which furnished all the gasoline and.

motor fuel sold'by DeMarco, owned allthe outside fixtures

~vand a substantial part of the equipment, including. acom- -

"pressor located inside the - one-story! building, and four —

. underground gasolite tanks which had been installed’in

"1940. The servi¢e station consisted of a service area atid —

. an enclosed office, portion with two windows, one in front

and one on the side,-and three doors, two opening on the~

~ outside, one at front and one in the rear, and a side

door for access to 7

_ Appendix A—Opigion of Appellate Division

Sb i ‘Jeaeh Te Davenport, for 25 years a ‘inion of the. ,

_. © | Paterson Fire Department and at the time of trial the

hereof, testified on behalf, of. the plaintiff. -

that on the evening of January 28, 1953, he responded to a

Be bagr which took him to Tubby’s Service Station; that

he'was-‘‘in charge of. that fire;’’ and that his duties included he

an investigation to determine the cause of the fire. : ‘ When

../. he'arrived at the scene he saw the: plaintiff ’sdecedent, J ohn_

*G, Schultz, lying directly outside the front door of the office ~

of the’ service stai.on building; that, although severely —

burned, Schultz was still conscious; that. he ordered-him

\ wrapped in blankets and taken to the nearest ‘hospital. -

ra He also testified that the fire, which was immediately extin- .

‘ euished; -was a'‘‘superficial fire,”’.a ‘‘flash firé,’’ and. in-

ved. the whale area instantaneously, but that there was

m0; deep penetration of the flames. . .

‘He testified, further that all the windows. of the: station.

| had been blown. out, but that, although there were ‘‘one or

two pans” ‘which looked as though they. could be -used for .

volatile liquids, he found upon_inspection. no indication that

“— they had recently been so used, nor was there-any volatile —

substance inside the building. He stated.that in his opinion ©

_., the fire had been ‘‘caused by. gasoline: vapor in some man-

"= ner; shape or form’ and concluded, that since there were

an volatile substances inside the station, the vapor or fumes |.

->had come from the outside, where the only pqssible source: -

_ was, vent pipes leading from the underground gasoline

x tanks. He: stated that the purpose of such vent pipes is. to

: permit. the escape of gasoline vapor which is. generated

by the agitation of the fuel i in the tanks when being either.

* filted or emptied. ers |

, The - testimony and photographic exhibits disclose that.

there were two. sets of ven pipes: one set of two vents was

located in/the rear, of th building and there is some indi-

-<eation that they were not in use; the other consisting of

i thrée vent Birt was | loeated a airane the outside wall of the

Sa’

; Appendix eee of Appellate Division

building, and the pipes axthnded 11 11% feet above the ground,

to within three or four inches below the. roof of the one-

story building. When’ asked whether the fumes came from

the vent pipes on the side or rear of the building, Deputy. .

Chief Davenport said he did not know. However, he fur-

ther testified that the vents should have extended above -

“the roof, -although he gave it as his opinion that the vents

: provided adequate means for the diffusion of any gas fumes

which might come from the underground tanks. He also —

stated that in his opinion the fumesentered the interior —

of the office portion of the station building through cracks in -

the bottom of its two doors and through a series of ventila-.

. tionholes in the wooden frames of its front and side win-

. dows, which holes were about three or ‘four feet from the

_ floor and each about 3/16 inches in diameter. In support. of

- his theory: that the gasoline vapor came from outside the

| station, Davenport testified that if the fire had been caused.

by. an-open container of gasdline, there’ would have been a’

no such charred area was found. However, he admitted

_. dhat in his written report of the fire he had stated: ‘‘Cause

7 unknown,”’ because, according to his testimony, ‘«factually

there is nothing here to ‘substantiate what I gave as my

opinion.’? He testified that the fumes that were in the

building could not have come from anything that wag, in-

side the building that evening, but ‘‘it is possible.’’ ” When

asked if it was sichebie or possible that the fumes came —

- * from the veut pipes and entered the ventilation holes at the

bottom, of the window:frames and doors, he answered that

same question, he said, ‘‘ Yes, it is possible. 99/: Previously,

when asked the same question, he said: “5 did not say that

the fumes came through. I said it was possible for those -

to. come through and. also possible for the fumes to come

through the opening of the fraine door at the rear of the »

. —. Those are —* sir.’? While he oo"

u + * : : e § a

-* , - @ .

charred area in the floor underneath the container, but that= .

ee was ‘reasonably probable,’’ and again when asked the

ea . that fumes from.the outside. entered the building and were -

explosion.

) ia ae - ~ de :

yes A—Opinion of Appellate Division

that the Fire Department had an explosion salen sai that

he had watched it demonstrated, he said that he himself -

had made no tests on the premise, nor had he ‘checked the.

~ vents to determine if fumes were escaping.

- - Joseph..De Marco, ‘the operator of the station, testified =

that occasionally both he and Schultz smoked inside the —

‘service station building; that on the day of the accident,

7 decedent’ s.first day of-work, he himself had left for home

about 6:15 P..M.; that. when he left the station, there were .

no. inflammables about, nor any open kerosene or gasoline —

cans; and that there were no tools.to be cleaned: He fur- |

ther testified that he never | saw sparks emitted by the

,. compressor. .

The plaintiff’s nore of the « cause of the aahtint was

_ ignited by sparks from the air compressor. However, no -

- one gave testimony which would support such a theory. .

The defendant called two witnesses. The first, Soso

- Cokinos,:-who operates a refuse business, testified that he.

stored his three trucks on Tubby’ 8 premises and customar-

‘ily. stopped in at:the station in the evening to review the ©

- day’s work and plan the next day’s work. . Further, that

on the evening of. the accident he went to the station at

~about 6:30 P. M.; that Schultz was fsleaning tools: in a five-

yallon can, ‘half full of: gasoline, and that the place was

‘‘pretty stuffy and hot and the furnace was going’’. How-

ever, Davenport testified thé stove was ‘‘out’’—this, in

spite of the cold winter weather. Cokinos further testified .

that the gxsoline fumes became. nauseating as the-tools -

were dropped into and pulled out of the can, and that after —

about half an hour he left:and went next door to a tavern

to ‘‘finish his receipts for that evening’’. \Shortly there-

after someone came into the favern ond told, him of the ©

we! Clarence Winchell, a chemist ae by -the defend-

ant; testified as an expert witness. that he examined the

Ea) .

Ce Tar > = 5a Sr I

7 . e ‘“

e “ ie Aveentie: A—Opinion of Appellate Division

premises on seven different oceasions in Deets: 1995 _

and January, 1956; that he made a a series of tests with a —

meter and otherwise for-gas fumes coming from the vent

: pipes, but found none; that ‘any gasoline vapor leaving |

the pipes. would disperse so quickly that after travelling /

15 to 20 inches it-would be iricombustible. Since the threeé=_——

vent pipes im question extended’ 11.6 feet in height, he

coneluded that the fire and resulting explosion ‘‘could not

possibly’? have been caused by. fumes ‘emanating from the .

vent pipes. However, he testified that the underside of a —

- bench above the air compressor, while slightly -scorched, |

was not blistered, which in all probability it would have — -

“been had sparks from, the compressor caused the fire.

| From the judgment of involuntary dismissal at the close

- of all the.evidence, the plaintiff appeals, arguing that the

trial court erred in taking from the jury the issuex of

responsibility, dangerous. condition, - negligence | and nui-_

sance' under the foresight for harm doctrine, and in exclud-

ing evidence as to the custom of the trade with respect

co construction and maintenance of vapor vents. ©

The plaintiff’s' cause:of action is predicated upon -the

alleged negligerice of the defendant i failing to obserye

its duty of care toward the plaintiff. Negligence is never

presumed and the burden of proof is upon the plaintiff. .

Callahan v. National Lead Co., 4:.N. J. 150 (1950)3 Shell-

hammer. v. Lehigh Valley RR Co., 14 N. J. 341 (1954), -

cert. denied 347 U. S. 990, 98 L. Ed. 1124, 74S. Ct. 852.

(1954), rehearing denied 348 U. S. 852, 99 .L. Ed. 672, 75

S.Ct. 20 (1954). The question of whether the defendant

was negligent or violated a duty it owed to the decedent

or whether its action could, under the facts and cireum-

stances here presented, be viewed as such by a reasonable -

man, cannot be considered in the abstract. If there is no —

| proof that such negligénce was’ the cause of decedent’s

injuries, the contention must fall. McCombe v. Public

7 Service meses Co., 95 N. J. L,_187 (E. & A., i Mc-

wd.

6a

. Appendix, A—Opinion of Appellate Division

g

ne : Coppin: Vv. ‘Park Capitol Corp., 42 N. J. Super. 169. (App.

_ Div.-4956). For the plaintiff to recover damages, the evi- :

- dence must be sufficient to sustain ‘the. hypothesis that de-

_- . fendant’s negligence resulted i in plaintiff’s injury.

Here, on defendant? s motion for involuntary dismissal

at the close of all the. evidence, the triaPcourt entered a .

judgment dismissing the complaint. ‘The motion for dis- |

missal was made pursuant to R.R. 4 :42-2(b) which provides ~

- that the defendant may move for a dismissal of the action -

on the ground that upon the facts and the law the plaintiff

*. has shown no right to’relief. On such.a motion the court

must take as true-all evidence which supports the claim

of the plaintiff and give him the benefit of all legitimate —

and ‘logical inferences to be draww therefrom, McKinney -

. v. Public Service Interstate Transp. Co., 4 N. J. 229, 243

* (1950) ; Mellon v. Penna.-Regding Seashore Lines, 7 N. J.

415, 419 (1951), including those inferences which arise from ~

the proofs offered on defendant’s behalf, Van Cott v. North’

Jersey St. Ry. Co., 72 N. J, L. 229 (E. & A. 1905); Haw--

thorne v. Jowett, 121 N. J. L. 38: (BE. & A. 1938) | However, —

to recover for injuries sustained’ because of the negligent

act of another,-especially where the evidence is circum-

stantial, the proofs st.show not merely a possibility,

“but a probability that the injury restilted from defendant’s ©

negligence’’, Woschenko v. C. Schmidt & Sons; 2 N. J. 269,

277 (1949) ; Fleamir, Inc. v. Lindeman & Co., 4 N. J. 509,

514 (1950) ; McCappin v. Park Capitol Corp., supra. ;

We have carefully examined the evidence here pre-

sented in the light of the above stated principles of law.

- ‘We note that. the flash fire or explosion occurred on a cold

evening in January, 1953; that gasoline is not very volatile

under such weather conilitions ; that the vapor vents would:

expel vapor fumes from the underground storage tanks

. When being filled or emptied, but that neither operation —

Av as taking place: at the time of the accident. The —T

se

Appendix A—Opinion of Appellate. Division -

of the plaintiff’s cause of action is that gasoline vapor —

which left the vents at a height of 111% feet above. the

ground descended to about three or four feet above the

ground and entered the station office through ventilation

holes 3/16’ of an inch in diameter, or through cracks in

the door—in a concentration sufficient to be explosive.

Joseph DeMarco, the operator of the station, testified that

at the side of the. building where the vent pipes were, there |

is a.‘‘drafty alleyway’’./ Clearly, the draft would not be. .

in the direction of the véntilation holes in the windows, but

in a-transverse direction, and: would operate to disperse

| more quickly any gasoline. fumes which might have leaked

from the vent pipes. Moreover, it should be noted that

the gasoline fumes. would’ after emanating from the ‘side

vent pipes not only have had to permeate a ‘‘drafty alley- -

~way’’, bui would have had to turn a corner in order to

seep through the front or rear door, =: ,

_. The plaintiff’s only witness as to. causation and negl-

gence was Deputy @hief Davenport, who testified that the

“vents were too low; that, according to all the leading au- 7

thorities on this particular type of ‘installation,;:-they should _

have been above. the roof; but- when asked specifically ———

whether the vents permitted sufficient diffusion, he said,

«Tn my opinion, they did, sir.” Because he found no evi-

dence of volatiles inside the building, he testified that any |

fumes must have emanated from the vent pipes, but he did

| not specify what ignited them. He did not qualify as an =

¥ expert in chemistry or physics, nor as an expert on gasoline -

tank vents; so his opinion as to defendant’s negligence was

at best of little weight. Rempfer v. Deerfield Packing Corp.,

4.N. J. 135, 145 (1850), In Bowman v. Central R.-Co. of

N. J, 2UN. J. Super. 370, 373 (App. ‘Div. 1953), it was

stated that ‘‘Negligence. or a circumsiantial basis generat-

ing a logical or legitimate inference of its existence must —

be established by competent proof.””

|

ae Sa |

_Appendiz A—ORigion of Appellate Division .

( Davempet’s testisneniy as: t6.what path, the vapor fa. =:

ined oft t dt thn venta portotesty ta view of his od

mission that he had made no tests to determine the amount —

xe of vapor escaping, or how it got into the interior of the |

building, was definitely in the realm of conjecture and spec- :

ulation. He gave no evidential support for the hypothesis |

' that the vapor seeped or flowed into the building through $

’ - the ventilation holes or under the doors. All these factors,

added to the highly dispersive nature of all vapors, even in

still air, much less in a ‘‘drafty alleyway,’’ make Daven- .

. port’s explanation not only highly: fanciful, but almost

incredible, Indeed, as stated, he himself admitted that

‘factually there is nothing here ito amenatet what. I

_ gave as my opinion.”” _

In Ferdinand v. Agricultural Ins. Co. of Watertown,

N. Y., 22 N. J. 482, 493 (1956), it was stated that ‘‘when

the proof ofa particular fact is so meager or so fraught

with doubt that a reasonably intelligent mind could come

to no conclusion but that the fact did not exist there is no

- question for the jury to decide. Likewise, when the proof :

on a question of fact is so strong as to admit of no reason-_

able doubt as to its. existence, again, there is no question |

for the jury to decide. In both these cases the court must _

_make.the determination and advise the jury accordingly. oe

. ° Here, had the proofs been submitted to the jury for .

determination it would have had to speculate not on prob- .

_ abilities, but on mere possibilities. There was no proof .

- whatever of. what agency set in motion the forces that

; caused the injury to John Schultz, and hence proximate

| cause could not legitimately have been inferred. McCombe

= Public Service Railway Co., ‘oupra. Surmise and con- _

jon Maas eo eke eee

dence Matchett v. F. C. Reinhardt H Co., 110 N. J

L. OO (E. & 4., 1983) ; Shelthammer v. —

Co., supra, at p. 344. ee

J

: : 9a

a

_ Appendia A—Opinion of Appellate Division soos

Although the plaintiff contends on this aaneal that the —

_court erred in excluding evidence as to trade custom in the

= construction and installation of vent pipes in service sta-_

tions,.in view of the fact that the record is devoid of any —

evidence that the of the. vent pipes, even if.

. substandard, mane decedent's i injury, the contention would .

- not warrant rev Ball v. Atlantic City dmbatendor :

Hotel Corp., 1 N. J. L. 744. Esa, — :

_ Affirmed. vA | :

/,

10a

APPENDIX B

| Mandate © on Affirmance

ee This « cause having been duly argued aleed this Court ag -

_. Harvey G. Stevenson, counsel for the appellant and Philip

~M. Lustbader, counsel for the es . and the devs cud

See pee considered the é same, — e

It is hereupon wink and adjudged that the inllecnsent

Py the said Superior Court, Law ‘Division is affirmed with -

‘costs; and it is further ordered that this mandate shall —

issue ten days: hereafter, unless an application for rehear-... ~

ing shall have been granted or is pending,. or unless‘a No- -

tice of-Appeal to the Supreme Court or a Notice of Peti- ~

tion for Certification has been filed or is pending, or unless

otherwise ordered by this Court .and that the record be

remitted to the Superior Court, Law Division to be there |

proceeded with in accor dance with the rules and practice

. relating to that Court, consistent with the opinion of this

| Court. .

Wirxess: the Senior Judge of the Part, pen Court :

-of New J ersey, ad Divsion, at Trenton on the 11th

. day of March, 1957. 3

° ‘oie a 7

Clerk of the ‘Buperior. Court.

een

a 4 L hereby certify that the foregoing i isa a true copy of’ the :

original. on file i in rel office. y ena pee

| . L Grant ‘Boor, ts

es Clerk;

—

ee

Ns

ns wan ,

. e 8 = = : . e . K (

. . : - : >

\ ‘

\ Bf = s oe aD lia : és . R | \ :

"APPENDIX ie

| Order Denying Petition

To Appellate Division, Superior Court: = = | - ers

| A petition. ‘for certification having been submitted to

_. this Court, and the. Court having considered the om,

It is hens Ordered. ‘that the petition for certifica

tion i is denied, with costs. — ae

ae. Wren the innit Harry Beker; Senior Associate

WS ustice, at ‘Trenton. « on the 30th: day of J yee 1957. -

‘Joan H. ies: a.

Clerk of\ the Supérior Court.

| Filed: : | Ne ee se

t } @ :

Jun 306957 Bo: . eee

ree ; - Joun H. GupEa, a

JoHN H. Gitzins, ; ; 2

Clerk. ns

oe oe ney ae

A TrRvE oe

. "Sous H. Guana,

: ——