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Daniel v. Gielty Trucking Co.

Decided: January 31, 1936.

CHARLES E. DANIEL, PLAINTIFF-APPELLEE,
v.
GIELTY TRUCKING COMPANY, A CORPORATION OF NEW JERSEY, NICHOLAS ZARRILLO, DEFENDANTS-APPELLANTS, JOHN SAGES AND "WILLIAM" BERBERIAN, FIRST NAME WILLIAM BEING FICTITIOUS AND UNKNOWN, TRADING UNDER THE FIRM NAME SAGES AND BERBERIAN, PARTNERS, AND MARTIN MAHLER, DEFENDANTS



On appeal from the Supreme Court.

For the defendants-appellants Gielty Trucking Company and Nicholas Zarrillo, Green & Green (David Green).

For the plaintiff-appellee, Stuhr & Vogt and John W. McGeehan, Jr.

Bodine

The opinion of the court was delivered by

BODINE, J. The defendant Trucking Company appeals from a judgment in favor of the plaintiff and against the defendants. Error is predicated upon the failure to nonsuit or direct a verdict. The plaintiff was struck by the Sages and Berberian truck while crossing Central avenue, East Orange. There are traffic lights at the place of injury. These lights indicated, at the time of the occurrence, that eastbound traffic should stop and that it was safe for the plaintiff to proceed in the direction in which he was going.

The Traffic act (Pamph. L. 1928, art. 5, ch. 281, § 1, as amended by chapter 247, Pamph. L. 1931, § 7), provides as

to intersections where traffic is controlled by a traffic signal, as follows: "A pedestrian crossing or starting across any such intersection on a 'go' signal shall have the right of way over all vehicles, including those making turns, until such pedestrian has reached the opposite curb or place of safety, and it shall be unlawful for the operator of any vehicle to fail to yield the right-of-way to any such pedestrian."

The plaintiff had passed in front of two standing cars. The Trucking Company's vehicle was moving moderately fast in an easterly direction. However, it did not stop as it should have done for the red light and the plaintiff, in order to avoid injury, took a quick step forward and was struck by a truck owned by the other defendant. The testimony showed that the driver of this vehicle was proceeding at a terrific rate of speed. The proofs clearly indicate that the driver of the truck, the property of the appellant, Gielty Trucking Company, failed to observe a duty owed to the plaintiff and that he, while attempting to avoid injury, was struck by the other defendant, who was also negligent in failing to observe due care. It is argued that as a matter of law causal connection between the negligent act of the driver of the Gielty Trucking Company's truck and the injury suffered was broken. It would seem that causal connection was not broken as a matter of law and that the issue was for the jury under the instructions given.

The American Law Institute in its Restatement of the Law of Torts, states the applicable rule of law as follows: "Failure of a third person to perform a duty owing to another to protect him from harm threatened by the actor's negligent conduct is not a superseding cause of the other's harm." A.L.I. tit. "Torts," ch. 16, § 452.

"The mere fact that another person concurs or co-operates in producing the injury or contributes thereto, in any degree, whether large or small, is of no importance, * * *. It is immaterial how many others have been in fault, if the defendant's act was an efficient cause of the injury." 1 Shearm. & R. Negl., § 31.

"The connection between the defendant's negligence and the plaintiff's injury may be broken by ...


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