On appeal from the Supreme Court.
For the plaintiff-respondent, Waugh, Torppey & Consodine.
For the defendant-appellant, George D. McLaughlin (Philip M. Lustbader, of counsel).
The opinion of the court was delivered by
WELLS, J. This is an appeal from a judgment entered in the New Jersey Supreme Court, Essex Circuit, in favor of the plaintiff, Charles Burr, and against the defendant Metropolitan Distributors, Inc. The judgment in the amount of $7,500 was for damages for injuries sustained by the plaintiff when struck by a motor vehicle owned by the defendant-appellant and operated by the defendant's employee, Harold Scheptz.
The facts in this case pertinent to the question of negligence were developed by testimony of the plaintiff and his
witnesses uncontroverted by any evidence offered on behalf of the defendant. The defendant's employee, Harold Scheptz, could not be served with suit papers and was not called or offered as a witness by either party.
On March 3d, 1942, the date of the accident, plaintiff was employed by the Union Laundry Company as a salesman. As part of his duties he drove a truck for delivery and collection of laundry. In the early afternoon of the day in question plaintiff stopped at an apartment house located at No. 209 Prospect Street, East Orange, to pick up laundry from several customers.
Prospect Street was described as approximately twenty feet wide, running north and south, with parking permitted only on the east side of the street. The apartment house was on the west side of the street, located seventy-five to one hundred feet back from the sidewalk. There was a driveway running along the south side of the apartment house, providing ingress to the property.
Plaintiff parked his truck on the east side of Prospect Street, crossed the street and went up the driveway to enter the apartment house. As he was coming back out of the driveway carrying several bundles of laundry, an automobile driven by one Maxwell Boeck, headed in a southerly direction, was stopped just to the west of plaintiff's truck and about two or three feet from the westerly curb line of Prospect Street. Boeck, employed as a handyman at the apartment house, was intending to turn into the driveway but stopped to permit the plaintiff to reach the sidewalk with his burden.
When plaintiff had reached a point at or near the sidewalk, not yet having started to cross the street, he saw the defendant's truck approaching on Prospect Street in a southerly direction. The happening of the accident is described by the plaintiff's testimony as follows: "I saw the truck coming * * *. It was coming at a pretty good speed, maybe thirty miles an hour, something like that. I couldn't judge. I knew it was coming fast * * *. He shot around Mr. Boeck -- I didn't know the gentleman at the time ...