Batts v. Joseph Newman Inc.

• Decision Date: 20 July 1949
• Docket Number: No. A-84.,A-84.
• Citation: 67 A.2d 348
• Parties: BATTS v. JOSEPH NEWMAN, Inc., et al.
• Court: New Jersey Superior Court

67 A.2d 348

BATTS

v.JOSEPH NEWMAN, Inc., et al.

No. A-84.

Superior Court of New Jersey.Appellate Division.

Argued April 11, 1949.

Decided July 20, 1949.

Appeal from Hudson County Court, Law Division.

Action by Harry D. Batts against Joseph Newman, Inc., and Tide Water Associated Oil Company and another, to recover for injuries sustained when a cylinder which had fallen from first named defendant's truck was struck by second named defendant's truck and caused to roll into plaintiff who was standing on a sidewalk. Judgment for plaintiff and named defendants appeal.

Affirmed.

Before Judges McGEEHAN, DONGES and COLIE.

Thomas F. Doyle, Jersey City, argued the cause for appellant, Tide Water (Townsend & Doyle, Jersey City, attorneys).

John E. Hughes, Newark, argued the cause for appellant, Newman (Duggan, Shaw & Hughes, Newark, attorneys).

Andrew O. Wittreich, Jersey City, argued the cause for respondent (Jacob J. Levey, Jersey City, attorney).

The opinion of the court was delivered by

COLIE, J.A.D.

Tide Water Associated Oil Company, referred to as Tidewater, and Joseph Newman, Inc., referred to as Newman, appeal from a judgment entered upon a jury verdict after trial in the law division of the Hudson County Court. Subsequent to the entry of judgment for $60,000 in favor of the plaintiff, Harry D. Batts, the judgment was reduced to $48,000. The plaintiff sued the corporate defendants and the driver of the Newman car. The jury returned a verdict in favor of Newman's driver. On December 16, 1946 the plaintiff was standing on the sidewalk alongside a coal truck parked on the east side of Avenue E in the City of Bayonne, which street runs north and south. Shortly prior to the accident, a truck owned by Newman was proceeding in a southerly direction. A cylinder or tank weighing approximately 35 pounds fell therefrom into the highway, of which fact the driver of the Newman truck was unaware. The cylinder came to rest in the middle of Avenue E approximately opposite the coal truck parked on the easterly side thereof and behind which the plaintiff was standing. After a lapse of between two and five minutes, two trucks came along Avenue E in a northerly direction. The first of the two trucks was a green tank truck; the second was orange in color and is said to have had the name ‘Tidewater’ upon it. For purposes of clarity only, we will refer hereafter to that truck as the ‘Tidewater truck’. As it neared the point in Avenue E where the cylinder was lying, the Tidewater truck pulled to its left to pass the tank truck and as it did so, its right front wheel struck the cylinder, projecting it to the right underneath the chassis of the parked coal truck where it struck the plaintiff, causing comminuted fractures of both legs, requiring his hospitalization for something over one year. Plaintiff's action against Tidewater and Newman was predicated upon negligence of Newman in improperly and negligently fastening the cylinder in its truck. The negligence of Tidewater was based upon the negligent failure to avoid the object in the highway and to make proper observations. We will first discuss the appeal of Tidewater Associated Oil Company and develop the facts so far as need be in discussing the various points raised.

Tidewater argues that the trial judge erred in refusing to grant its motion for nonsuit and for a directed verdict. Whether or not the driver of the Tidewater truck was negligent, depends mainly upon the testimony of one Mary Kovacs who was seated in an automobile parked on Avenue E facing south about one and a half blocks north of the scene of the accident. She testified that she saw the cylinder fall from the Newman truck, that it lay in the center of the street for from two to five minutes, that she saw the dark green tank truck and the orange rack truck as they approached the cylinder, that the tank truck veered to his right toward the curb and as he did so the orange truck struck the cylinder. At that time the Tidewater truck was going fast. From the evidence, it was for the jury to determine whether or not the driver of the Tidewater truck was negligent. There was no error in the refusal to nonsuit or direct a verdict in favor of Tidewater.

The next point argued is that ‘there was no sufficient proof of ownership in the defendant Tide Water of the truck allegedly involved in the occurrence, either at the close of the plaintiff's case and certainly not at the close of the defendant's case.’ The witness Kovacs described the color of the truck as ‘orange’, ‘red orange’ and ‘kind of orange color’. She testified that she saw the word ‘Tidewater’ on the truck and it is argued on behalf of the defendant Tidewater that seated as she was a block and a half from the scene of the accident, the angle was so acute as to make it highly improbable that she saw, at that time, the word ‘Tidewater’. This argument loses weight in view of the...