William A. Smith, Freund and Woods. The opinion of the court was delivered by Freund, J.s.c.
The plaintiff appeals from a judgment of dismissal entered in favor of the defendant, Silver Rod-Paterson, Inc., and from a judgment for the defendant, Mike Macchiarelli, entered upon a jury verdict of no cause of action.
Silver Rod-Paterson, Inc., operates a retail drug store at No. 135 Main Street, in the City of Paterson. The defendant, Mike Macchiarelli, a waste and garbage collector, each day removes from the cellar of the store empty cartons and refuse, for which he receives $1 a week and the salvage. Silver Rod's porter, Mortimer Edsall, assists Macchiarelli by opening the sidewalk cellar doors and handing the cartons up to the sidewalk. On December 11, 1948, the plaintiff had made a purchase in the Silver Rod store and as she came out and walked along the sidewalk, the cellar doors were open and she was struck by a box allegedly thrown from the cellar by both Edsall and Macchiarelli. The suit was brought to recover for injuries suffered by her.
"Q. Who threw the box? A. Both of them together. They threw it right out.
Q. They both threw it together? A. Yes, sir.
Q. You saw two men in the cellar? A. Yes, sir, a young fellow and an elderly man.
Q. Now, you don't know who threw the box. A. The older man and the young fellow, too."
The plaintiff then proceeded to identify the older man as Macchiarelli and the young fellow as Edsall.
Both Macchiarelli and Edsall denied throwing the box out of the cellar. Edsall testified that on the morning in question, he was removing the empty boxes from the cellar; that he was working with Macchiarelli; that he handed the boxes to Macchiarelli who placed them on the sidewalk, from where his helper took them to his truck at the curb. Macchiarelli testified that he had been doing this work for Silver Rod
since about 1942; that he does similar work for others; that he owns his truck ...