On appeal from the Hudson County Court of Common Pleas.
For the plaintiffs-appellees, Collins & Corbin (Edward A. Markley and Peter P. Artaserse).
For the defendants-appellants, McDermott, Enright & Carpenter (Patrick A. Dwyer and Charles A. Rooney, of counsel).
Before Brogan, Chief Justice; and Justices Parker and Porter.
The infant plaintiff brought suit by his next friend for personal injuries suffered by him which were alleged to have resulted from the negligent operation of the defendants' auto truck by defendants' employees, Bracey and Harris. The parents of the infant brought suit to recover the moneys expended for medical services which the infant required and for the loss of his services.
The appeal is from the judgment recovered by the plaintiffs.
The facts and circumstances surrounding the incident complained of were that the defendants' truck, loaded with junk metal which reached a height of about eleven feet, was being operated southerly on Coles Street, in Jersey City. In this area Railroad Avenue, running east and west, accommodates the main line of the Pennsylvania Railroad by overhead railway. On reaching Railroad Avenue the operator of the truck, considering that there might not be enough clearance to permit the loaded truck to pass under the railroad bridge, turned right on Railroad Avenue and proceeded in a westerly direction along the northerly side of that street. As he approached Monmouth Street the accident happened. At this point the northerly side of the railroad trestle is twelve feet eight inches from the northerly curb line. The columns supporting the overhead railroad stand in the roadway. The rear, right side wheel of the truck ran over the leg of the infant plaintiff causing serious and permanent injuries. The boy was five years old at the time of the accident. Just how the accident occurred is a matter of conflicting testimony. For the plaintiffs there was testimony to support the conclusion that the truck was traveling at a "fast" rate, close to the curb of the sidewalk where the infant plaintiff was walking in an easterly direction towards his home; that Harris was standing on the right side running board of the truck; that when he reached a point opposite the boy, reaching out, he pushed him, with the result that the boy fell and his leg went under the rear wheel. As against this the defendants produced testimony to the effect that the infant plaintiff, with other children, was playing a child's game in the course of which he was pushed by one of the children, a boy bigger than the rest, towards
the oncoming truck; that the defendant Harris, standing on the running board, attempted to push the plaintiff out of danger; that he himself fell off the truck in his endeavor to save the boy from injury. Bracey and Harris were conceded to be employees of the defendant at the time, but it is argued that if Harris pushed or attempted to push the boy that he was not acting within the scope of his employment and that, therefore, the respondeat superior doctrine has no application.
Three witnesses testified for the plaintiff concerning the manner in which the accident happened -- Mary Mullica, Josephine Giaquinto and Helen Zymoski. The first of these witnesses, a twelve-year-old sister of the plaintiff (she was eight years old at the time of the accident) said that the boy stopped on the street to speak to Miss Zymoski and that Harris, from the running board, as the truck was going by very fast, pushed her brother on the right shoulder, with the result that he fell and the rear wheel of the truck passed over his foot; that at the time the boy was on the sidewalk about a foot from the curb; that the position of the truck in the roadway was also about a foot from the curb; that infant plaintiff, when pushed, lost his balance and fell. The next witness corroborated this testimony and said that the truck was going fast, no horn was sounded, and the wheels of the truck were about a foot from the curb, the running board almost even with the curb. The testimony of Miss Zymoski was to the same effect.
As against this, one Jerry Collins testified for the defendants, saying that he saw the accident; that the infant plaintiff was pushed by another boy; that Harris tried to "grab" the infant plaintiff and push him out of harm's way but missed him and in so doing fell off the truck to the sidewalk. On cross-examination the witness admitted he did not see anyone push the boy; he further admitted at a previous trial of this case he then testified that he did not see the accident; that he did not ...