Jacobs, Proctor and Waesche. The opinion of the court was delivered by Proctor, J.s.c. Waesche, J.s.c. (dissenting).
Defendant appeals from an adverse judgment of the Hudson County Court, entered as the result of a jury verdict.
On September 26, 1947, at about 5:00 P.M., the plaintiff's tractor-trailer was being operated by his employee, Simpson, in a southerly direction along Grove Street, Jersey City. While passing under a trestle of the Pennsylvania Railroad Company, which crosses Grove Street at Railroad Avenue, the top of the trailer came in contact with highly charged electric wires of the defendant as a result of which the vehicle and its cargo were damaged by fire.
The issues framed by the pretrial order were negligence, nuisance, contributory negligence, assumption of risk and damages. During the trial it was stipulated that the placing and maintaining of the wires were by municipal consent under statutory authority. Therefore, we do not consider it necessary to determine whether or not the defendant was guilty of maintaining a nuisance.
The case was tried within the narrow issue of whether or not the defendant under the circumstances gave proper warning of the clearance under the trestle to which its wires were attached.
It appears without dispute that the defendant maintained two electric trolley bus wires passing under the railroad trestle. The wires were attached to hangers, screwed into a plank fastened to the trestle. The electric wires hung approximately 6 inches below the steel girders of the trestle. The outside wire was about 9 feet from the westerly curb. On the right of the northerly side of the trestle as the vehicle approached a sign was stenciled in white paint "Clearance 12 feet 3 inches." This sign was about 5 feet wide and extended "all the way down" the trestle. Plaintiff's tractor and trailer were 12 feet 1 inch in height, within the requirement of R.S. 39:3-84.
It was the contention of the plaintiff that the defendant was negligent in not providing proper warning that the wires were located at a point lower than the height of plaintiff's vehicle. The defendant contended that it had placed an additional sign on a bank board attached to the trestle directly above the wires which read "Clearance 12 feet."
Defendant contends that the trial court erred in denying its motion for judgment and further, that the verdict was against the weight of the evidence. It argues that the testimony offered in behalf of the plaintiff that the trestle was not properly posted as to the clearance under it was negative and hence valueless against positive testimony of defendant's witnesses to the contrary.
On direct examination Simpson, the driver of plaintiff's vehicle, testified in respect to the presence of a warning sign, as follows:
"Q. Will you please tell us just briefly what you did and what took place at that time? A. Well, I was traveling south on Grove Street on my way to Newark and I came to the bridge and I slowed down and I started under. The tractor got pretty well under it and when the trailer got under it touched these wires so I stopped
and backed out and unhooked the tractor and by that time the fire company was there.
Q. You stayed there. Now were there any signs on that trestle? A. I seen one sign.
Q. Where was that sign and what did it say? A. It was on the bridge.
Q. By the bridge you mean the trestle itself? A. That is right.
Q. And what did that say? A. Twelve feet three inches.
Q. Were there any other signs there? A. I did not see any.
Q. Were there any signs over these wires? A. I didn't see any.
Q. You did see one sign, however, twelve feet three inches? A. Yes. I did."
On cross-examination he testified as follows:
"Q. Mr. Simpson: you said you approached the trestle there and you looked and you said you saw a sign? A. That is right.
Q. You wouldn't be able to tell us how many feet there was to the curb? A. No, I couldn't.
Q. Well could you tell us where the -- withdraw that -- you only saw one sign at the time? A. That is right.
Q. Now would you tell us where the sign was that you did see? A. It was on the construction of the underpass.
Q. It was on the trestle, and on which side of the trestle was that on? A. Right.
Q. And do you know what that sign was on? Was it on wood or metal or what type was it? A. I believe it was painted on.
Q. Painted on the metal? A. That is right.
Q. Now as you were going underneath the trestle did you see the wires themselves, prior to the accident that is? A. Yes, I seen the wires.
Q. And did you notice whether or not over or above the direct wires there was a sign there, another sign or a sign said, ...