Thompson v. Petrozzello

• Decision Date: 17 June 1927
• Docket Number: No. 413.,413.
• Citation: 137 A. 835
• Parties: THOMPSON v. PETROZZELLO et al.
• Court: New Jersey Supreme Court

137 A. 835

THOMPSON

v. PETROZZELLO et al.

No. 413.

Supreme Court of New Jersey.

June 17, 1927.

Appeal from District Court of East Orange.

Action by Joseph Thompson against Thomas Petrozzello and another, trading as Petrozzello Bros. Judgment for plaintiff, and defendants appeal. Affirmed.

Argued January term, 1927, before KALISCH, KATZENBACH, and LLOYD, JJ.

Milton M. Unger, of Newark, for appellants.

Howard P. Barrett, of Madison, for respondent.

PER CURIAM. This appeal is before us on a state of the case settled by the trial judge of the East Orange district court. The case as settled is as follows:

"The action was in tort to recover damages to plaintiff's automobile when it met with an accident on Rollinson street in West Orange, N. J.

"Rollinson street is a public highway in West Orange, N. J., running north and south, and was paved with amesite up to the southerly curb of Pillot place, West Orange, N. J. From that point and thence south to Hazel avenue, a distance of several hundred feet, the defendants, who were paving contractors, were laying a smooth concrete pavement. At the point where amesite pavement ended and new concrete pavement commenced, the defendants had for a distance of 4 feet piled on earth to a height of 6 inches and then sloped it down with a drop of 1 1/2 inches per foot.

"The contract and specifications of the defendants with the village of West Orange called for the laying of a six-inch concrete road, and on August 1, 1925, the date of the alleged accident, the contractors were about ready to pour concrete.

"The plaintiff's son, Joseph Thompson, on the night of August 1, 1925, was driving his father's automobile from Livingston, N. J., and was headed for South Orange, N. J. The automobile was a seven-passenger car and filled to capacity. The night was clear and the automobile was being operated at about 15 miles an hour. Lights of car were lighted. The occupants of the car were, including the driver, seven in number and friends of the plaintiff or his family. All the occupants of the car were in court and testified. Their testimony was: That they were travelling about 15 miles an hour, when all of a sudden the car dropped into a hole, rolled a foot or so, and stopped dead. They all got out of the car, found that front wheels of car were in an excavation or depression. That there was no barrier across the street, nor red light across the road. That there was a red light on a concrete mixer on the side of road some few feet to the rear of the car. With the aid of a flashlight they saw oil leaking and that the pan under crank case was bent. The car could not be moved and had to be towed to their home. Some two weeks later it was repaired. The driver of car further testified that he had never driven in this street before.

"The defendants bring on their witnesses, Mr. Samuel De Manci, an employee of Petrozzello Bros., Mr. James Petrozzello, and Peter Schmitt. Samuel De Manci testified that on August 1, 1925, at about 4 o'clock in the afternoon, he put a barrier across the southerly crosswalk of Rollinson street and Pillot place and placed on it three lanterns, filled with kerosene and lighted; said he came the next morning and found lanterns all lit and barriers in same position as he had left them the night before. James Petrozzello testified that there were two lights on mixer on the side of road and three lights on the barrier across the road. He testified he was on job Sunday morning and found it same as it was the night before. Peter Schmitt testified that he made it his duty to see lanterns were filled, and that barriers were put up every night, three lights on them; that he did not get to the job until Monday...