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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1957

## Text

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 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 :
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.

. 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

“

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.

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.

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 -* ” 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
—

_ 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.

‘ 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 =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 .
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7 e \ - yr — - ° 5 te - . « sz ’ :
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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
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a Be bo ry
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2

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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-
- = 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,
: ——

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386418_1530%3A2. Public record. Not legal advice.