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Apgar v. Hoffman Construction Co.

Decided: January 25, 1940.

DAISY APGAR AND PHILIP APGAR, PLAINTIFFS-RESPONDENTS,
v.
THE HOFFMAN CONSTRUCTION CO., DEFENDANT-APPELLANT



On appeal from the Supreme Court.

For the plaintiffs-respondents, Gebhardt & Gebhardt (E. Herbert Kiefer and W. Reading Gebhardt).

For the defendant-appellant, Smith & Smith (Sylvester C. Smith, Jr.).

Case

The opinion of the court was delivered by

CASE, J. The action arises out of a motor vehicle collision which occurred March 18th, 1937, on State Highway No. 29 -- then a three-lane road -- a short distance west of Plainfield. Judgment went for plaintiffs, and defendant appeals.

There was evidence from which a jury could resolve these factual findings: Defendant's employe was driving westwardly along the highway, a combined vehicle of the type [124 NJL Page 87] known as tractor-and-trailer, with a length over all slightly more than thirty-eight feet. The automobile tractor was eighteen feet long; the height to the top of the cabin was about nine feet. The trailer was of a kind used to transport steam shovels or other heavy machinery; it was ten feet wide and over twenty feet long, with a deck or carrying platform about thirty-two inches above the ground. The apparatus had actually just finished moving a shovel in Plainfield and was on its way to move a well tower. The platform was bare of load. Defendant's driver, who well knew the highway in that vicinity and had frequently driven over it, was at the wheel, with his helper sitting at his side. Snow began falling heavily. The rubber hosing which carried the power to the wiper on the windshield of the tractor "had been so cracked" that when the snow began falling the wiper became stuck and the driver, with the intention of cutting off some of the defective hosing and making a readjustment so that the wiper "would take hold," pulled to the side of the road and stopped. The comparative widths of the road shoulder and of the tractor and trailer were such that the tractor could be, and was, placed wholly off the concrete but the deck or platform of the trailer necessarily extended, at the rear end, from three to four feet upon the concrete or traveled portion of the roadway. At a distance of approximately one thousand feet ahead there was ample space off the concrete for both tractor and trailer to be parked. Had the driver propelled the vehicle to the opposite side of the highway, he would likewise have had enough room to park without encroaching upon the concrete. Neither the driver nor his helper did anything to warn other drivers of this menace on the highway although the road was ordinarily heavily traveled and there was much traffic at that time. The driver applied himself to his repair work. The helper opened up the hood at the front of the tractor and stood there. Meanwhile, Mrs. Apgar was driving at moderate speed on the same highway and in the same direction, with as much visibility as an operating wiper on the windshield could give her against the beating storm. As she approached defendant's parked apparatus she saw the cab of the tractor and pulled to the left to give it full clearance. She did not

observe the low, snow-covered trailer extending out over the highway and failed by about two inches to escape it. From the resulting collision came the injuries and the losses sued upon.

Appellant's first and second points are, respectively, that the court erred in denying to the defendant, on its motion, a nonsuit and a direction of verdict. Did the defendant, through its servants and agents, exercise such care as (to use the words of the charge addressed by Mr. Justice Dixon to the jury in Kowalski v. Newark Passenger Railway Co., 15 N.J.L.J. 50) an ordinarily prudent person would have exercised under the conditions existing at the time it was called upon to act? Did it foresee and have due regard for (Mr. Justice Garrison in Evers v. Davis, 86 N.J.L. 196) the danger reasonably to be foreseen at the time of acting? Was it an act of ordinary prudence to stop and allow the snow-covered, low-lying trailer platform to project for several feet into the lane of travel on a busy state highway without taking the precaution to warn other drivers of the danger? Was it or was it not (vide Traffic act, R.S. 39:4-136) "practicable to park" the trailer "or leave it standing off the paved, improved or main traveled portion" of the highway or was it "impossible to avoid stopping" the vehicle? The danger was obviously great and perhaps rendered greater by the fact that the more visible part of the vehicle -- the tractor -- was off the lane of travel. We are given no good reason why the driver did not lean out of the cab window and with that view, familiar as he was with the road, proceed the short distance to a more spacious shoulder, or why he did not brush the snow from the windshield and drive on to make the repairs at a safer spot, or why the helper was not posted at the rear of the trailer, or why some other form of warning to traffic was not given. The danger in permitting such a condition to exist under the weather conditions then prevailing was, of course, foreseeable by the defendant's experienced driver. Whether the driver did foresee and have due regard for that danger and whether he conformed to the appropriate standard of conduct was, in our opinion, obviously a fact -- and therefore a jury -- question. So, too, whether the plaintiff was

guilty of contributory negligence. Where fair-minded men may honestly differ as to the conclusions to be drawn from facts, whether controverted or uncontroverted, the question at issue should go to the jury. Mumma v. Easton and Amboy Railroad Co., 73 Id. 653; Cady v. Trenton and Mercer, &c., Corp. 104 Id. 572.

Appellant's third point is that the court erred in charging the jury that it was the duty of the driver to give such warning, if any, of the presence of the vehicle upon the highway as a reasonably prudent person would give under the circumstances and that a failure, if such there was, to give such a warning would be ...


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