Powers v. Standard Oil Co.

• Decision Date: 09 January 1923
• Docket Number: No. 70.,70.
• Citation: 119 A. 273
• Parties: POWERS v. STANDARD OIL CO. et al.
• Court: New Jersey Supreme Court

119 A. 273

POWERS

v. STANDARD OIL CO. et al.

No. 70.

Supreme Court of New Jersey.

Jan. 9, 1923.

Appeal from Court of Common Pleas, Essex County.

Action by LeRoy Powers, as administrator against the Standard Oil Company, Charles McGuire, and another. Judgment for the defendant McGuire, and for the plaintiff against the Standard Oil Company and the other defendant, and latter defendants appeal. Reversed.

Argued November term, 1922, before BERGEN and MINTURN, JJ.

Collins & Corbin, of Jersey City, for appellants.

Kalisch & Kalisch, of Newark, for respondent.

MINTURN, J. While the Standard Oil Company, and its driver, the other defendant, were violating the Traffic Act (P. E. 1915, c. 156) by parking their large oil-distributing truck on the wrong side of South Twelfth street, in the city of Newark, the 9 year old child of the plaintiff, ran from behind the truck in an attempt to cross the street, and not perceiving the automobile of Charles McGuire coming up the street in a northerly direction, ran into its forward mudguard, was injured, and died from the injuries thus sustained. The action was brought to recover damages for the child's loss. McGuire was made a defendant, and the case proceeded to trial against the three defendants. The jury found a verdict in favor of McGuire and against the two appealing defendants. The contention at the trial was, and here is, that a nonsuit or a direction for the defendants should have been granted, because the proximate cause of the damage was the automobile of McGuire, and not the obvious dereliction of the present defendants in parking the truck upon the wrong side of the street.

The contention of the respondent is that, if the truck had not located illegally on that side of the street, the child would undoubtedly have had a clearer range of vision presented to her, and the collision might thus have been obviated; or that if the truck had stood squarely against the curbline, instead of at an oblique angle thereto, the child might have been able to observe sufficiently down the street to perceive the approaching danger, and avoid it. To this dereliction is superadded the fact that the truck was a high vehicle, and that at the time its rear doors were open, for the purpose of enabling the driver to draw and deliver oil, from the truck's tank, and that this fact constituted an added obstruction to the child's range of vision.

The controverted question as to the contributory negligence of the child was properly submitted to the jury, and the only controverted question presented now is whether the conceived dereliction of these defendants, constituted the proximate cause of the accident.

It appears from the testimony of McGuire that, even if the position of the truck had been reversed, so as to entitle it legally to park on the side of the street where it was stationed, the same difficulty of an obstructed vision would have been presented. This fact indicates that the position of the truck in any event presented simply a perfectly obvious existing condition, rather than an operating unforeseen efficient cause. In such a situation the relative duties of exercising due care, in traversing the street, were simply accentuated, and resulted in casting upon the driver of a vehicle using the street, the requirement of additional caution, and upon the wayfarer in attempting to cross the street a like precaution, and did not per se constitute negligence upon the part of the owner of the truck, so as to subject him to liability as an efficient proximate cause. Winch v. Johnson, 92 N. J. Law, 219, 104 Atl. 81; Paulsen v. Klinge, 92 N. J. Law, 99, 104 Atl. 95.

The fact that McGuire was found by the verdict not guilty of negligence in the operation of his car, does not per se impose liability upon the other defendant, unless such defendant can be brought within the legal comprehension of the efficient proximate cause of the accident. The case was submitted as against McGuire upon the theory that he may have occupied that status. The fact that the verdict was in his favor may be accounted for in the light of the charge of the court, upon the theory that he was not such cause, or that if he were, the child was guilty of contributory negligence in running against the car, with ample opportunity of observing its approach. But whatever factual theory the jury adopted, as a basis for their verdict, cannot operate per se to impose liability upon the remaining defendant, unless such liability can be predicated upon the recognized legal principle to which we have adverted.

In D. L. & W....