Before McLAUGHLIN, KALODNER and HASTIE, Circuit Judges.
McLAUGHLIN, Circuit Judge.
Defendant appeals from a plaintiff's judgment in this tort death case.
On November 21, 1959 plaintiff's decedent was the foreman (its "expert on the job", as Construction's project manager described him) for Construction Service Company, a subcontractor on a New Jersey State Highway construction project in Bayonne, New Jersey. Defendant was the general contractor for the work.
Under the terms of the contract between the Highway Department and the Chapman company the latter was required to subcontract the removal and relocation of fuel oil pipelines, owned by Bayonne Industries, Inc., and lying in the path of the new highway, to a "member in good standing of the Pipeline Contractors Association, Dallas, Texas," such subcontractor to be approved by the owner of the pipelines. The subcontractor was to work under the supervision of the State Highway Engineer and the owner. In accordance with its contract, defendant subcontracted the work to Construction Service Company.
The subcontracted work consisted of the digging up and removal of four buried 8inch pipelines and the laying of twin buried 12inch pipelines elsewhere in their stead. The latter entailed the digging of a long trench which, due to the contour of the land and under the contract specifications, extended at points to depths of more than fifteen feet passing very close to an overhead bridge abutment. After laying the heavy one ton 12inch pipe sections and welding them together, the subcontractor had to test the pipeline for leakage. The contract provided:
"Leakage Testing to test the tightness of field joints, shall be performed under a test pressure of 100 psi held steady for 20 minutes. * *
"Test pressure shall be supplied by compressed air. If the test is performed on the entire lines, compressed air, but no gauges will be supplied by Bayonne Industries Inc. If the pipeline subcontractor chooses to test portions of the line, compressed air and gauges shall be furnished by the subcontractor."
It was during one of those tests that decedent was killed. At the time, the twin pipeline had reached 3,000 feet in length and was laying at the bottom of the muddy trench near the concrete abutment to an overhead bridge; the State's engineers were afraid of the possibility of a collapse of the bridge. In preparation for this, the second test, one end of the second twin pipeline was capped and completely sealed while the other end was capped with a plug containing a pipe nipple, a gate valve which could be closed manually when the pressure inside the pipeline reached 100 psi, and an air gauge to determine when that pressure was reached. Having chosen to test the pipelines in portions, the subcontractor had to furnish its own equipment under the quoted terms of the contract. To supply the compressed air, the subcontractor's own rubber hose was connected from the pipe nipple to a large compressor standing at ground level. The compressor was freely lent the subcontractor by the defendant. The subcontractor's hose was originally fifty feet in length but, sometime prior to the accident, it had broken and was spliced together both before the first and this second test of the pipeline by some unknown employee of the subcontractor. The splicing was done haphazardly; the metal tube inserted into the broken ends of the hose was smooth, not serrated to permit the two holding clamps to work effectively. Moreover the tube was not inserted into the ends of the hose a sufficient distance, and the subcontractor did not use a check valve to prevent air from rushing out of the pipeline in the event the hose or its couplings broke.
After the preparations were completed, the decedent descended to the bottom of the trench and the compressor was started. Within fifteen or twenty minutes, when the pressure in the pipeline reached 98 psi, the operator of the compressor heard a "popping" sound and stopped the compressor. Apparently unable to hear the sound himself due to the noise of the compressor's operation at the bottom of the trench, decedent climbed a ladder out of the trench and was told by the operator what he had heard. Decedent concluded that it "was nothing", instructed the operator to restart the compressor, and again descended into the trench. Shortly thereafter, the splice came apart with an explosive noise. The air compressed in the pipeline rushed out of the broken end of the hose attached to the pipeline hurling a large quantity of mud, shoring material and other debris out of the trench. That broken end snaked about in the narrow confines of the trench, struck and killed decedent.
At the end of plaintiff's case, defendant moved to dismiss the complaint and enter judgment in its favor on the ground that the proofs presented did not warrant the claim going to the jury. It was argued on behalf of the plaintiff that the entire surroundings of the project made the work inherently dangerous. The court denied the motion "at this time". After the defense evidence had concluded, the plaintiff withdrew her theories of liability as to the defective compressor and retention of control by Chapman. This left, as stated by her attorney, "* * * the theory of the dangerous, inherently dangerous activity as the plaintiff's basis for recovery in the action."
The defense then moved for judgment on the ground that plaintiff had failed to offer evidence sufficient to go to the jury on the inherently dangerous activity issue. The trial court in taking the motion under advisement and permitting the question to be submitted to the jury stated "I think the test is whether or not the operation is of an inherently dangerous nature, of a nature to which necessarily there attaches great danger." The plaintiff agreed with this thought arguing "* * * that the inherently dangerous nature of the operation was found in the total circumstances of the job as I have indicated before."
The court charged "This defendant may not be found responsible unless the work which the subcontractor was doing was by its very nature inherently dangerous." The jury returned twice for instructions re "inherently dangerous". On its second appearance the court charged "If an employee of the Construction Company is negligent and that negligence is the proximate cause of the injuries sustained, and the work itself is inherently dangerous, then the negligence of the Construction Company is attributable to the prime contractor, or the defendant in this case." Thereafter the jury rendered a verdict in favor of the plaintiff.
On the motion n.o.v. it was argued that the activity had not been shown to be inherently dangerous, that the cause of the accident had been the breaking of the poorly mended hose. The court correctly interpreted that argument to "* * say that the danger arose not from the nature of the work but from the fact that the subcontractor used an improper tool * * * which the prime contractor had no reason to suspect he would use. * * * And that of itself ...