McGeehan, Jayne, and Wm. J. Brennan, Jr. The opinion of the court was delivered by Jayne, J.A.D.
[18 NJSuper Page 452] The defendants are Newark Iron & Metal Co., a New Jersey corporation, and its employees, Buster Bough and John McCleave. The mishap from which this action originated was the occurrence on the evening of December 3, 1948, of a collision on State Highway No. 10 in the Township of Hanover, Morris County, between a passenger vehicle owned and operated by the plaintiff and a motor truck in charge of the defendant Bough which was
being towed by another truck driven by the defendant McCleave. The plaintiff's car proceeding easterly collided with the rear of the towed truck on the south lane of the highway. The jury rendered a verdict of no cause for action in favor of all of the defendants and against the plaintiff. An accordant final judgment was entered, from which the plaintiff appeals.
The background in view of which we consider the merits of the present appeal should, perhaps, be more comprehensively disclosed. Bough had undertaken at the direction of his employer, Newark Iron & Metal Co., to transport several tons of scrap metal from Wharton to Newark by means of a 1926 model Mack dump truck, and on the way the aged truck succumbed to the burdensome task. McCleave was dispatched with another veteran Mack truck, 1927 model, to rescue Bough. Upon reaching Bough, McCleave's truck was overheated and in dire need of water. Of pertinent significance is the fact that neither truck was equipped with electric lights. The only luminative instruments available were kerosene lamps which evidently required a replenishment of fuel. The lamps had "very small wicks." There was a "light rain" or "drizzle" and the atmosphere was "hazy." The mishap occurred about 7 P.M.
However, the Bough truck was attached by a tow line to the McCleave truck and the vehicles proceeded easterly at a speed of ten miles an hour on the highway. McCleave was able at Wycoff's Oil Station to obtain a supply of water for his truck but unable to procure kerosene until the vehicles arrived on the highway in front of the Minisink Oil Co. station situate on the north side of the highway. The trucks were not driven off the highway or across it to the parkway in front of the station but remained on the south lane while the oil in the lamps was replenished. One of the defendants stated that the trucks were in motion onward when the collision occurred.
The plaintiff testified that he was driving his vehicle at a speed of 20 to 30 miles per hour easterly on the south
lane looking watchfully ahead and saw nothing on the lane before him until he reached a point about eight or ten feet from a "big black object" with which his vehicle collided. He was thereby rendered unconscious. A passenger in an automobile proceeding westerly in passing by the trucks shortly before the collision noticed them, and in looking back at them saw no light on the rear of the towed truck.
It is evident that the predominant issue at the trial related to the degree of care the defendants had exercised in maintaining on the trucks and in particular on the rear of the towed truck, any signal device or any reasonably adequate light to warn other travellers of the presence of the trucks on the highway in the existing conditions.
It appears that a witness Munther was present at the trial to testify that about an hour and a half before the occurrence of this collision and at a point on the highway about two miles westerly therefrom, he too was operating his vehicle in an easterly direction and watching for vehicles ahead of him; that he suddenly came upon the trucks, on which he saw no light, and indeed came into collision with the rear of the towed truck.
The admissibility of that testimony was a subject of discussion with the judge in the absence of the jury at the commencement of the trial. Counsel for the plaintiff, respecting the tentative opinion of the judge, refrained from alluding to such testimony in his opening remarks to the jury and reserved the opportunity to proffer it during the progress of the trial. He did so and the judge resolved that it should be excluded:
"The Court: Your use of the testimony of Munther, as I take it, would be to show the condition of the tail light on the one truck at the time he had an accident with it. My thought about that is that is much too remote insofar as distance is concerned and insofar as time is concerned.
All right. My reason for not allowing the testimony to go in on this case is that it is too remote from the ...