Rapp v. Public Service Coordinated Transport
Decision Date | 11 September 1951 |
Docket Number | No. A--465,A--465 |
Parties | RAPP v. PUBLIC SERVICE COORDINATED TRANSPORT, Inc. |
Court | New Jersey Superior Court — Appellate Division |
Charles A. Rooney, Jersey City, attorney for and of counsel with plaintiff-respondent, argued the cause.
Edward S. Kirby, Newark, argued the cause for the defendant-appellant (Carl T. Freggens, Newark, attorney).
Before Judges JACOBS, PROCTOR and WAESCHE.
The opinion of the court was delivered by
Defendant appeals from an adverse judgment of the Hudson County Court, entered as the result of a jury verdict.
On September 26, 1947, at about 5:00 P.M., the plaintiff's tractor-trailer was being operated by his employee, Simpson, in a southerly direction along Grove Street, Jersey City. While passing under a trestle of the Pennsylvania Railroad Company, which crosses Grove Street at Railroad Avenue, the top of the trailer came in contact with highly charged electric wires of the defendant as a result of which the vehicle and its cargo were damaged by fire.
The issues framed by the pretrial order were negligence, nuisance, contributory negligence, assumption of risk and damages. During the trial it was stipulated that the placing and maintaining of the wires were by municipal consent under statutory authority. Therefore, we do not consider it necessary to determine whether or not the defendant was guilty of maintaining a nuisance.
The case was tried within the narrow issue of whether or not the defendant under the circumstances gave proper warning of the clearance under the trestle to which its wires were attached.
It appears without dispute that the defendant maintained two electric trolley bus wires passing under the railroad trestle. The wires were attached to hangers, screwed into a plank fastened to the trestle. The electric wires hung approximately 6 inches below the steel girders of the trestle. The outside wire was about 9 feet from the westerly curb. On the right of the northerly side of the trestle as the vehicle approached a sign was stenciled in white paint 'Clearance 12 feet 3 inches.' This sign was about 5 feet wide and extended 'all the way down' the trestle. Plaintiff's tractor and trailer were 12 feet 1 inch in height, within the requirement of R.S. 39:3--84, N.J.S.A.
It was the contention of the plaintiff that the defendant was negligent in not providing proper warning that the wires were located at a point lower than the height of plaintiff's vehicle. The defendant contended that it had placed an additional sign on a bank board attached to the trestle directly above the wires which read 'Clearance 12 feet.'
Defendant contends that the trial court erred in denying its motion for judgment and further, that the verdict was against the weight of the evidence. It argues that the testimony offered in behalf of the plaintiff that the trestle was not properly posted as to the clearance under it was negative and hence valueless against positive testimony of defendant's witnesses to the contrary.
On direct examination Simpson, the driver of plaintiff's vehicle, testified in respect to the presence of a warning sign, as follows:
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'
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On cross-examination he testified as follows:
'Q. Mr. Simpson: you said you approached the trestle there and you looked and you said you saw a sign? A. That is right.
'Q. You wouldn't be able to tell us how many feet there was to the curb? A. No, I couldn't.
'Q. Well could you tell us where the--withdraw withdraw that--you only saw one sign at the time? A. That is right.
'Q. Now would you tell us where the sign was that you did see? A. It was on the construction of the underpass.
'Q. It was on the trestle, and on which side of the trestle was that on? A. Right.
'Q. And do you know what that sign was on? Was it on wood or metal or what type was it? A. I believe it was painted on.
'Q. Painted on the metal? A. That is right.
'Q. Now as you were going underneath the trestle did you see the wires themselves, prior to the accident that is? A. Yes, I seen the wires.
'Q. And did you notice whether or not over or above the direct wires there was a sign there, another sign or a sign said, 'Clearance, 12 feet'? A. I didn't see it.
'
'
The plaintiff testified that he had on a number of prior occasions driven the tractor-trailer under the trestle; that he saw the sign reading 'Clearance 12 feet 3 inches,' but never saw a sign reading 'Clearance 12 feet.'
Three employees of the defendant testified that there were two signs on the north side of the trestle; that one bearing the words 'Clearance 12 feet 3 inches' was stenciled on the trestle a few feet from the right curb line; that 6 feet to the left of this sign was a bank board attached to the trestle directly over the wires on which in 6 inch letters were the words 'Clearance 12 Feet;' that the letters in the sign 'Clearance 12 feet 3 inches' were larger than those in the sign 'Clearance 12 Feet.'
The general rule is that, ordinarily, affirmative testimony is stronger than negative testimony. Where a witness simply testifies that he did not hear or see a particular object, such testimony standing alone is without value. However, as circumstances are added, tending to increase the probability that the witness would have observed the object had it existed, the testimony approaches a point beyond which it cannot be said that it does not have sufficient weight to carry the case to the jury. Such testimony, while negative in form, is positive in substance. 'The only requirement is that the witness should have been so situated that in the ordinary course of events he would have heard or seen the fact had it occurred.' 2 Wigmore, Evidence (3rd ed. 1940) § 664. See also Note, 140 A.L.R. 530.
Since Simpson, the operator of plaintiff's vehicle, was apparently attentive, on the look-out for warning signs, in a position to have seen the two signs, if both existed, and testified that he saw only one sign, viz., 'Clearance 12 feet 3 inches,' the fact that the defendant's witnesses testified affirmatively as to the existence of two signs does not, under the well settled rule in this state, remove the question from the domain of the jury. Mellon v. Pennsylvania-Reading Seashore Lines, 7 N.J. 415, 421, 81 A.2d 747 (1951); Mazanek v. Pennsylvania-Reading Seashore Lines, 125 N.J.L. 394, 15 A.2d 885 (E. & A.1940).
The cases of Eissing v. Erie R.R. Co., 73 N.J.L. 343, 63 A. 856 (Sup.Ct.1906) and Holmes v. Pennsylvania R.R. Co., 74 N.J.L. 469, 66 A. 412 (E. & A.1907), cited in the brief for defendant, do not apply where the facts, as in the present case, are not parallel and where one in a position to see, sees nothing. Cowell v. Pennsylvania R.R. Co., 101 N.J.L. 507, 510, 129 A. 136 (E. & A.1925). The testimony offered in behalf of the plaintiff cannot be said to be merely negative. Ackerley v. Pennsylvania R.R. Co., 130 N.J.L. 292, 299, 32 A.2d 449 (E. & A.1943).
When permission is given to suspend along a public highway a wire, so charged with electricity as to be dangerous to the public if they come in contract with it, this permission entails a duty to give reasonable warning of such danger. See Opdycke v. Public Service Ry. Co., 78 N.J.L. 576, 584, 76 A. 1032, 29 L.R.A.,N.S., 71 (E. & A.1910). It was admitted that on the right side of the trestle, under which side south bound traffic travelled, a sign was stenciled indicating that vehicles under 12 feet 3 inches could proceed with safety. It is also undisputed that the defendant by placing its wires under the trestle lessened that clearance by about 6 inches. Assuming, as defendant contends, that there was an additional but smaller sign elsewhere on the trestle indicating a lesser clearance, the jury could find that such sign, placed as it was, in its relation to the larger sign indicating a greater clearance, was not a reasonable warning of the danger. McNary, a member of defendant's emergency crew, testified that 'quite a number of times' prior to the occurrence he was summoned to the trestle 'to pike up wires that had been burned down by trucks.' The foregoing placed defendant on notice that the wires attached to the trestle as posted created a hazard to the travelling public, and that defendant could anticipate...
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