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Byer v. H.R. Ritter Trucking Co.

Decided: January 27, 1944.

JOHN E. BYER, PLAINTIFF-APPELLEE,
v.
H.R. RITTER TRUCKING CO., A CORPORATION, DEFENDANT-APPELLANT



On appeal from the Supreme Court.

For the defendant-appellant, Starr, Summerill & Lloyd (Alfred E. Driscoll, of counsel).

For the plaintiff-appellee, Horace G. Brown.

Thompson

The opinion of the court was delivered by

THOMPSON, J. This is an appeal from a judgment entered in the New Jersey Supreme Court upon a jury verdict in favor of the plaintiff-appellee in an action for personal injuries alleged to have been caused by the negligent operation of a truck owned by the appellant.

Appellant grounds its appeal upon the trial judge's denial of its motions for a nonsuit and for a directed verdict. The motions were based on defendant's contention (a) that the plaintiff failed to prove any actionable negligence on defendant's part, and (b) that plaintiff's own negligence proximately contributed to his injuries, thereby barring as a matter

of law his right to recovery. These are the only issues involved in the present appeal.

The appellant was engaged in the business of hauling oil and petroleum products, and in such transportation it was accustomed to crossing the Delaware River bridge. The appellee was employed on the bridge at the toll collector's station alongside of the so-called twelfth or outside lane approaching the City of Camden. His duty required him to reach out and collect the toll tickets from the drivers of passing vehicles at this point. He was engaged in such duty on the day of the accident in question, when one of the appellant's trucks approached the toll booth and stopped for the purpose of the toll ticket transaction. His contention is, generally speaking, that while engaged in taking the required ticket from the driver of the truck on this occasion, and before completing the act of regaining his position on the platform, from which he had to reach toward the driver, which reaching occasioned a certain amount of leaning in the direction of the driver because of the fact that the latter was in a location behind the wheel on the left side of the cab of the vehicle, the driver started the truck with a jerk, causing it to strike the plaintiff before he could resume his upright position on the toll platform, which is a narrow concrete space at a level of about eight inches above the roadway, the collision of the truck with the body of the plaintiff precipitating him to the roadway and causing his injuries.

The plaintiff himself was the only witness who testified as to what actually happened that caused him to be injured. Two other toll collectors saw him in the roadway and picked him up a little distance beyond his toll booth station after the truck had driven off. They did not see the accident. It is said that no driver of any of appellant's trucks knew of or reported any accident, so that there was no testimony from that quarter as to what happened. Plaintiff's own story, therefore, is the only direct evidence of the circumstances of his injury. He testified that he "leaned on the cab and reached over to get the two tickets the driver had and, just as I had them in my hand, something pinned me or jerked away from me and pinned me and I whirled around, struck

the building, struck the tractor again, threw me forward, and I slipped there and fell off the curb, and the wheels caught my hips." "I mean the truck gave away from me, went away from me suddenly." "I fell right down off the curb, against the wheels." "All I can remember, I tried to get out of the way of the rest what was coming, tried to pull myself up off the roadway and get on the platform." He further testified as follows:

"Q. Mr. Lloyd said to you that you collected the toll and then you slipped and that's all you ...


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