Sokiera v. H. A. Jaeger, Inc.

• Decision Date: 15 December 1933
• Docket Number: No. 13.,13.
• Citation: 169 A. 347
• Parties: SOKIERA v. H. A. JAEGER, Inc.
• Court: New Jersey Supreme Court

169 A. 347

SOKIERA

v. H. A. JAEGER, Inc.

No. 13.

Supreme Court of New Jersey.

Dec. 15, 1933.

Appeal from Circuit Court, Union County.

Action by Anna Sokiera, as administratrix ad prosequendum, against H. A. Jaeger, Inc. Judgment for plaintiff, and defendant appeals.

Affirmed.

Argued May term, 1933, before BROGAN, C. J., and TRENCHARD and HEHER, JJ.

McDermott, Enright & Carpenter, of Jersey City (Carl S. Kuebler, of Jersey City, of counsel), for appellant.

Martin P. O'Connor, of Elizabeth, for respondent.

PER CURIAM.

The plaintiff obtained a judgment against the defendant for damages for the death of her husband, and the defendant appeals.

At the trial it appeared, among other things, that on July 27, 1928, between 10 and 11 o'clock at night, the defendant's automobile truck, to which was coupled a trailer, upon which was loaded a steam shovel, was being driven along Edgar road, a public highway in the city of Linden. The apparatus was about forty-nine feet in length and was in charge of defendant's employees. At the time of the accident there was a heavy rain, accompanied by wind and fog. While the plaintiff's intestate, about 40 years of age, and in good health, was crossing Edgar road where it intersects Ashton street, he was struck by the caterpillar wheel of the steam shovel, which projected over the side of the trailer, and was drawn under the wheel and killed.

The defendant first says that the trial court erroneously refused to grant defendant's motion for a nonsuit.

We think not, in view of the testimony as to inadequate lighting of the truck and trailer in the circumstances. Thus Frank Sobozenski testified that he lived at the corner of Edgar road and Ashton street where the accident occurred; that he had been to a carnival on Edgar road and was on his way home when he saw a man (decedent) in front of him about fifteen feet away walking in the same direction; that when decedent got to the corner of Ashton street and Edgar road he stepped into the street and started to cross, at which time it was raining and foggy, when suddenly he heard a distressing cry and saw a white object fly; that he went across the street and saw the decedent lying on the ground; that a man took decedent's body out from underneath the wheel;. that he saw the truck when he got alongside of it; that he did not see the apparatus passing along Edgar road. He testified that the lights on the machine could not be seen until he got "right close to it, I seen one light." There was other evidence to the same general effect.

The motion for nonsuit was made based upon two grounds: First, that there was no proof of negligence of the defendant, the contention being that the truck was operated at five miles per hour; that there were two lights on the front of the truck; that there was a red light on the left side of the crane cabin and within a few feet of where the man came in contact with the cabin, and another light on the rear left side of the crane cabin; the second ground was contributory negligence of decedent, the contention being that he was running toward the truck; that he was looking toward headlights which were approaching him; and that he ran in front of the caterpillar on the left side of the crane at a point which is a few feet from where there was a red light.

We think that defendant's motion failed to take into account the condition of the weather, the absence of lights in the neighborhood, and the condition and location of such lights as there were on the truck and trailer. The evidence tends to show the following matters of fact: It was a very dark night, and at the point of the accident there was no street light, and the...