Kinsley v. Von Atzingen, A--215

• Decision Date: 11 July 1952
• Docket Number: No. A--215,A--215
• Citation: 90 A.2d 37,20 N.J.Super. 378
• Parties: KINSLEY et al. v. VON ATZINGEN et al.
• Court: New Jersey Superior Court — Appellate Division

Page 378

20 N.J.Super. 378

90 A.2d 37

KINSLEY et al. v. VON ATZINGEN et al.

No. A--215.

Superior Court of New Jersey Appellate Division.

Argued June 16, 1952.

Decided July 11, 1952.

Aaron Gordon, Jersey City, argued the cause for appellants.

George P. Moser, Union City, argued the cause for respondents (William V. Roveto, Union City, on the brief).

Before Judges McGEEHAN, JAYNE and GOLDMANN.

The opinion of the court was delivered by

McGEEHAN, S.J.A.D.

After the plaintiffs had completed the presentation of their evidence on all matters other than the matter of damages, in the Hudson County Court, Law Division, the court granted the defendants' motion for dismissal of the action.

The plaintiff Helen Kinsley sued for injuries sustained when a piece of a bumper and a bolt and nut from a milk delivery truck crashed through the window of her apartment and struck her; her husband sued for consequential damages. The defendants William Von Atzingen, Walter Von Atzingen and Ernest Zima were the owners, and their employee Philip Tyskewicz was the operator, of the milk truck.

For at least three years prior to the date of the accident, Tyskewicz had been delivering milk to tenants of the apartment house in which the plaintiffs resided. On the day of the accident, he stopped his truck across the street from this apartment house, parked it against the curb about one foot in back of another parked automobile, left the truck and entered a house on the opposite side of the street. After he had gone into the house, a 13-year-old boy passenger in the truck, who had been standing on the right-hand side of the truck a little to the back, moved over to the left-hand side and began to 'fool' with the mechanism. Shortly thereafter the truck moved forward, struck the parked car immediately in front, breaking off the tail-light and a mudguard, then moved across the street and hit a tree. The 13-year-old boy then got out and ran away. The truck struck the tree with such force that a part of the bumper and a bolt and nut were thrown through the window of the plaintiffs' apartment. During the three years prior to the accident, Tyskewicz had the same boy with him on the truck on Saturdays, Sundays and school holidays.

We are not involved here with any contention that the 13-year-old boy, in starting the truck or driving it, acted as an agent for any of the defendants, that any defendant violated any statute or ordinance, or that there was any negligence in the parking of the truck itself. Compare cases annotated 158 A.L.R. 1374. The plaintiffs state their sole contention as follows: 'What we said below and what we repeat here is that the negligence of the defendants was in allowing an irresponsible youngster (boy) in a truck alone with ignition controlled by a button without a lock controlling the ignition.' They argue that they made out a Prima facie case under the rule of law set forth in Restatement, Torts (1934), § 302(b); and in Barbanes v. Brown, 110 N.J.L. 6, 163 A. 148 (Sup.Ct.1932); Reti v. Vaniska, 14 N.J.Super. 94, 81 A.2d 377 (App.Div.1951), certification denied 8 N.J. 39, 83 A.2d 665 (1951); Smith v. James J. McFeely, Inc., 175 A. 368 13 N.J.Misc. 25 (Sup.Ct.1934).

A negligent act may be one which: * * * (b) creates a situation which involves an unreasonable risk to another because of the expectable action of the other, a third person,...