Geise v. Mercer Bottling Co.

• Decision Date: 29 April 1915
• Docket Number: No. 53.,53.
• Citation: 94 A. 24,87 N.J.L. 224
• Parties: GEISE v. MERCER BOTTLING CO. et al.
• Court: New Jersey Supreme Court

94 A. 24

87 N.J.L. 224

GEISE

v. MERCER BOTTLING CO. et al.

No. 53.

Court of Errors and Appeals of New Jersey.

April 29, 1915.

(Syllabus by the Court.)

Appeal from Circuit Court, Mercer County.

Action by Herman Geise against the Mercer Bottling Company, a corporation, and another. From judgment for defendants, plaintiff appeals. Reversed, and venire de novo awarded.

Martin P. Devlin, of Trenton, for appellant. Edward L. Katzenbach, of Trenton (Frank S. Katzenbach, Jr., and Peter Backes, both of Trenton, on the brief), for appellee Mercer Bottling Co. George W. Macpherson, of Trenton, for appellee Trenton & M. C. Traction Corporation.

PARKER, J. The question for decision is the propriety of a nonsuit directed by the trial court as to both of the defendants impleaded. The suit was for personal injuries arising from the plaintiff being run over by an automobile truck of the defendant bottling company, at or near the intersection of Market and South Broad streets, in Trenton. The defendant traction company had car tracks in both streets, connected by a switch in Broad street. The street was paved with asphalt, and on each side of the tongue of the switch was a deep rut or; depression, worn by wagon wheels. Defendant's employs driving the truck along Broad street, failed to notice the rut, and one of the front wheels entered it, wrenching the steering gear out of his hands, or otherwise causing him to lose control of the truck, which at once swerved from its former course and turned uncontrolled into Market street in time to strike and run over the legs of plaintiff, who was crossing Market street on foot. The testimony indicates that the truck ran wild for about a hundred feet and stopped on the sidewalk. As against the bottling company, the plaintiff counted on negligence of its driver generally; as against the traction company he charged that it carelessly and negligently maintained its tracks, road-bed, etc., in a dangerous and unsafe condition, and by reason of such condition, to wit, a large rut or hole in said roadbed, and defective and improperly laid rails, tracks, and switches, the truck in question became unmanageable and ran into plaintiff.

The evidence for plaintiff would amply have supported a finding that the rut was four feet long and six inches deep, and was on both sides of the rail. As one of the witnesses expressed it, "the track laid in the hole;" "the whole switch * * * looked as if it was right in the hole."

This is sufficient statement of facts for a consideration of the nonsuit as to the bottling company, whose liability must turn on the question whether its driver was under any duty of care to observe defects in the roadway that would be likely to interfere with the normal operation of the piece of machinery that he was driving, or was negligent in losing control because his wheel entered the rut, or in failing to regain control in time to avoid injuring the plaintiff. That he was required to use reasonable care for his own safety, and that of the property intrusted to him, is obvious; and whether, in the exercise of such care, he should have observed the rut and avoided it, would be a question for the jury. There is, of course, no 'absolute duty on the part of one using the highway to observe defects and obstructions therein, but the duty exists of making such observation as the circumstances or the case reasonably require, and this is a question for the jury. Durant v. Palmer, 29 N. J. Law, 544, 548; Houston v. Traphagen, 47 N. J. Law, 23.

In Morhart v. North Jersey Street Rwy. Co., 64 N. J. Law, 236, 239, 45 Atl. 812, 813, we said:

"A passenger along a public highway * * * may to some extent rely upon the public way being preserved safe for passage. * * * Whether, in respect to such occasional and unusual obstructions (as a hose stretched across the street), the passenger has exercised due care in observing and avoiding them, must generally be a question for a jury."

It is proper to add that an obvious or clearly visible defect in the roadway is not an occasional or unusual obstruction, but rather a natural and normal thing for a driver to look out for, and, if a jury might find such driver negligent in failing to see such an unusual obstruction as the hose in question, a fortiori would it be justified in such a finding in the case of a wide and deep rut in the smooth pavement, not to mention the other inferences of negligence in operation that the jury might draw from the fact that after striking the rut, the driver lost control of the steering gear, as well as of the motive power of the truck, and that it ran wild for a hundred feet or so, turned a corner, and was brought up on the sidewalk. Such an occurrence in a crowded city street is certainly not what would be expected in the normal operation of a truck by a reasonably careful driver, and might well raise an inference of negligence either by reason of insufficient control before the rut was encountered, or in failure to regain control promptly after it was encountered, or both, quite irrespective of possible negligence in running into it.

A similar duty would arise in favor of another person upon or near the street, and who would sustain injury as the natural and probable...