Caputo v. United States, Civ. A. No. 636-56.

• Decision Date: 23 December 1957
• Docket Number: Civ. A. No. 636-56.
• Citation: 157 F. Supp. 568
• Parties: Cristie C. CAPUTO, Plaintiff, v. UNITED STATES of America, Defendant.
• Court: U.S. District Court — District of New Jersey

157 F. Supp. 568

Cristie C. CAPUTO, Plaintiff, v. UNITED STATES of America, Defendant.

Civ. A. No. 636-56.

United States District Court D. New Jersey.

December 23, 1957.

John E. Hughes, Upper Montclair, N. J., for plaintiff.

Chester A. Weidenburner, U. S. Atty., Newark, N. J., by Barbara A. Morris, Asst. U. S. Atty., Montclair, N. J., for the Government.

WORTENDYKE, District Judge.

This Federal Tort Claims Act case (28 U.S.C. §§ 2674 and 1346(a) (b)) arises out of a collision which involved a light Ford "pick-up" truck owned and operated by the plaintiff and a personnel bus owned by the defendant, assigned to the United States Air Force, and operated by its employee while acting within the scope of his employment.

The collision occurred about 8:30 p. m. on August 30, 1954, upon a concretepaved dual highway known as U. S. Route 1, in the City of Linden in this District. It was raining and the highway pavement was west and slippery at the time of the occurrence complained of. The two vehicles came into contact at a point on the south (or west) bound portion of the dual highway, about in front of the "Swan Motel" and some 100 yards to the east or north of Woodlawn Avenue, which intersects the highway at right angles thereto.

Claiming to have suffered personal injuries as well as damage to his Ford truck, plaintiff charges that the operator of defendant's bus drove his vehicle at a fast and excessive rate of speed, in violation of the provisions of the Motor Vehicle and Traffic Acts of the State of New Jersey, N.J.S.A. 39:1-1 et seq., without reasonable and proper observations, without due regard for the rights of others on the highway, without having his vehicle under proper control and that he was in other respects negligent, thereby proximately causing the collision of which complaint is made.

Defendant denies the charged negligence and affirmatively pleads that the injuries and damage for which recovery is sought were caused by the plaintiff's own negligence.

It is elementary that negligence is never presumed and that in fact there is a presumption against negligence, especially in cases of this kind. The burden rests upon the plaintiff to prove his charge of negligent causation, as well as damages, by the preponderance of the evidence. I am unable to find from the evidence that plaintiff has discharged this burden. A finding of causal negligence on the part of the defendant's bus driver could be arrived at only as a result of pure speculation. "It is axiomatic that recovery cannot be had merely upon proof of the happening of an accident. Negligence is never presumed; it, or the circumstantial basis for the inference of it, must be established by competent proof, * * *." Murphy v. Terzako, App.Div.1951, 14 N.J.Super. 254, 259, 82 A.2d 1, 3, citing Gentile v. Public Service Coordinated Transport, App.Div.1951, 12 N.J.Super, 45, 78 A.2d 915. Nor do I find in the proofs any "circumstantial basis for the inference" of causal negligence.

On the issue of liability plaintiff testified in his own behalf and also adduced the testimony of a police officer, who produced records of an investigation made by him with two other officers, and who authenticated a diagram made by one of them and a signed written statement taken from the bus driver. Plaintiff testified that he was driving his truck in the center of the three south bound lanes of the dual highway, and slowed his vehicle to a speed of from two to five miles per hour as he approached the Woodlawn Avenue intersection to permit certain vehicles entering the highway from Woodlawn Avenue to turn right into the south bound direction on the highway. Plaintiff says that when his vehicle had actually entered the intersection, he suddenly developed a loss of memory; and that when he regained consciousness, he observed the front of the bus near the left door of his truck cab. He has no recollection of being conscious of any impact between the vehicles, and he testified that he last noticed the bus, which was then traveling in the lane nearest to the dividing center isle, at a point some distance to the north upon a bridge in the City of Elizabeth where he had passed it. Plaintiff tells us further, that as he slowed his vehicle on approaching the Woodlawn Avenue intersection, he did not see the bus, and that his reduction of his truck's speed commenced about 100 feet to the north of Woodlawn Avenue. According to his testimony, he had previously been traveling at 30 miles an hour. The prescribed speed limit in the immediate locality was 45 miles an hour. The police diagram purports to disclose the relative positions of the two vehicles when the officers arrived at the scene. Plaintiff's truck is shown at right angles to the direction of vehicular travel, with its front toward the safety isle, one-half of its length occupying part of the left hand and the other half part of the center of the three lanes of travel. The bus is shown in a diagonal position to the direction of travel, with its front near to the front of the truck, and its length occupying portions of the same two lanes. The left front corner of the bus was about five...