Clark v. Piccillo

• Decision Date: 18 June 1962
• Docket Number: No. A--897,A--897
• Citation: 75 N.J.Super. 123,182 A.2d 381
• Parties: Judson H. CLARK, Plaintiff-Appellant, v. Paul PICCILLO and Acme Fast Freight, Inc., Defendants-Respondents.
• Court: New Jersey Superior Court — Appellate Division

Page 123

75 N.J.Super. 123

182 A.2d 381

Judson H. CLARK, Plaintiff-Appellant, v. Paul PICCILLO and Acme Fast Freight, Inc., Defendants-Respondents.

No. A--897.

Superior Court of New Jersey

Appellate Division.

Argued May 28, 1962.

Decided June 18, 1962.

Alexander Levchuk, Freehold, for appellant.

Robert V. Carton, Asbury Park, for respondent Paul Piccillo (Durand, Ivins & Carton, Asbury Park, attorneys).

Edward E. Kuebler, Newark, for respondent Acme Fast Freight, Inc.

Before Judges CONFORD, GAULKIN and KILKENNY.

The opinion of the court was delivered by

KILKENNY, J.A.D.

Trial of plaintiff's personal injury negligence action in the Superior Court, Law Division, resulted in a jury verdict in favor of the defendants of no cause for action. Plaintiff's motion for a new trial having been denied and judgment having been entered on the basis of the jury's verdict, plaintiff appealed.

On December 27, 1957 the plaintiff, then and for about eight years prior thereto in the employ of Amboy Express Co., drove a tractor-trailer of his employer to a freight depot of the defendant, Acme Fast Freight, Inc., located in Bound Brook, New Jersey, for the purpose of delivering some portable radios boxed in cartons and some rugs, one of which weighed approximately 700 pounds. This large rug was lying on the floor of the trailer near its left side, as one looked into the trailer from the rear, and the front end of the rug, nearest the cab of the trailer, was imbedded to the extent of one foot or more under the radios which were stacked in the trailer on top of the rug at that point. The plaintiff, who was assisted in unloading the trailer by Robert Eden and the defendant, Paul Piccillo, employees of Acme, first removed the smaller rugs or miscellaneous items which were on the right side of the trailer, as one looked in from the rear. It was thereafter, when plaintiff, Eden and Piccillo were engaged in their joint effort to remove the large rug from the trailer, that the incident arose which gave rise to plaintiff's claim against the defendants.

Since no testimony was offered on behalf of the defendants, who chose to rest their case after the plaintiff had concluded the presentation of his evidence and defendants' motion for a dismissal had been denied, the only testimony descriptive of the accident came from the lips of the plaintiff. He testified as follows:

'Well, we had this big rug on the left side of the trailer * * * fifteen foot long and about a yard wide * * * well, it's got a flat bottom. When that weight gets on, it's a circular appearance * * * approximately 700 pounds * * * Robert Eaton (sic) took his hand truck and put the blade of it under the spool of the rug. * * * It (the hand truck) has two wheels, handles, you use it to transport boxes or whatever you have. * * * He put the blade of the hand truck underneath the spools of the rug to jack it out toward the center of the trailer, the front end of the rug was imbedded in some radios about a foot. In order to get the rug, he jacked the pack part out toward the center of the trailer, then he took the blade of the hand truck and put it on the floor and shoved it under the rug, bore down on the handles. The end of the rug cleared the floor about a foot, or approximately nine inches or a foot, then Paul Piccillo put the 2 4 underneath the rug for the lift. It (the 2 4) was a stake, it was on that order, I don't know if it was exactly a 2 4 but it was a stake out of a flat bed trailer body. * * * Now, I was up against the trailer body that was on the left side and I just had enough room to get in to make the lift, that gave Paul Piccillo the longest end of the 2 4. Now, he put it under there and we took up the slack and I told him to lift easy, the rug is heavy, so he started up and as we got up, he shifted the weight over onto me, causing me to wince. I had to let go. At that time Robert Eaton threw the hand truck and it caught the rug, not in the proper place, but it was enough so that two men could bear down and take it off. I told him, I said, 'My back, something is wrong with my back.' * * * He (Piccillo) heaved up his end and shifted the weight of that rug, it came over onto me. * * * Well, I felt a quirk in my back, it felt to me like somebody hit me in the back with a plank. That's what the experience of that was.'

On cross-examination, plaintiff admitted that at the time the effort was being made to remove the large rug, he was working in a rather small space, about a foot or a foot and a half between the rug and the left side of the trailer, with his left side against the trailer and facing toward the front of the trailer; that he was in somewhat of a cramped position and standing sideways and in a 'tight squeeze'; that, by virtue of the limitation of space on the left side of the rug, he had the short end of the 2 4 and this caused a greater distribution of weight to be on his side, rather than on Piccillo's side; and that he was 'aware of the uneven distribution of the weight of the rug on the 2 4 as he started to lift, and nevertheless started to lift.' He also conceded that on many occasions prior thereto he had lifted rugs 'by a method to that similarly employed on this day,' that is, by getting the blade of the hand truck under the rug, bearing down on the handles of the hand truck to raise the end of the rug, sliding the 2 4 under the upraised rug, and then lifting. He testified that this had been the usual method employed at this freight depot for eight years prior to the incident in issue and that there had been no previous mishap. He knew that no other equipment was ever available at this depot and never complained to anyone about it.

The plaintiff was then asked:

'So, what happened then on this day was that a chance was taken to get the rug out in the manner in which it was being taken out, without removing the freight.'

His answer was: 'I don't know, but I would say, yes.'

The gravamen of the first count of plaintiff's complaint was that Piccillo was negligent during the course of the above-described operation and for that reason was liable for plaintiff's damages; and that Acme, as Piccillo's employer, was liable under the doctrine of Respondeat superior. In his second count, plaintiff charged that Acme was negligent in failing to furnish proper equipment for the unloading operation. The issues of negligence, contributory negligence and assumption of risk were submitted to the jury with the result first noted above. Neither in the application for a new trial nor on this appeal has plaintiff contended that the verdict was against the weight of evidence. From the foregoing general factual picture, we now consider plaintiff's arguments on appeal.

Plaintiff's first point is that the trial court erred in calling into chambers during the trial for interrogation and instruction, first, one juror, and then a group of four jurors, after it appeared that the one juror had brought into court during the trial and exhibited to the four other jurors a picture of a fork lift truck. There had been the prior testimony that Acme should have provided a fork lift truck.

On the morning of the last day of trial, one of the jurors asked the court officer if it was all right to show the other jurors a picture of a fork lift truck in a pamphlet that he had with him, stating that he had already shown this picture to some of the jurors. The court officer reported the incident to the trial judge who thereupon called all the attorneys into his chambers for a conference. The trial judge suggested that a statement be placed on the record by the juror to see how far he had gone with this pamphlet and picture. The attorneys were advised that the test of impropriety in such a case was the capacity of the irregular matter to influence the jury. Counsel for Acme thereupon moved for a mistrial. Counsel for Piccillo made no motion. The plaintiff's attorney advised the court that he did not want a mistrial and expressed the belief that the picture would not influence the particular juror. He wanted that juror called in to be questioned and given individual instruction. This was done in the presence of all counsel, the plaintiff, and the court reporter. The juror stated that he had shown the picture to two ladies and two gentlemen on the jury, had no further conversations with them regarding the picture, and that the picture would not influence any determination by him as to the outcome of the case. Plaintiff's attorney then suggested that the trial court address the whole panel, but the trial judge replied that he would first examine the other jurors to whom the picture had been shown. Accordingly, they were brought in and questioned. They admitted that the picture had merely been exhibited to them, that they had not paid very much attention to it, and would not be influenced by it. The trial judge asked the plaintiff if he had heard what was going on, and he responded in the affirmative, and said that whatever his attorney said would be all right with him. His attorney then stated that he would have preferred a mistrial to the calling in of the first juror. However, he had opposed Acme's motion for a mistrial before that was done and had requested the interrogation of the first juror. The trial judge denied Acme's motion for a mistrial and the case proceeded. Later, in charging the jury, the trial court made it clear to all the jurors that 'any document not introduced into evidence in the formal course should not be used by you during your deliberations.'

We are satisfied that there was no prejudicial error in the conduct of the trial court in this respect; in fact, the plaintiff does not assert that he was prejudiced by the action of the individual juror in exhibiting the picture of the fork lift truck. If this evidence were prejudicial, the prejudice was rather to Acme than to the plaintiff. The plaintiff had testified concerning a fork lift truck and that...