Jayne, Proctor and Schettino. The opinion of the court was delivered by Schettino, J.s.c. (temporarily assigned).
Joseph Beyer, Jr., died as a result of injuries received in a collision between an automobile operated by him and a tractor-trailer. The tractor was owned and operated by defendant White, and the trailer was owned by defendant A.E.A. Co., Inc.
Plaintiff Maxine Beyer, as administratrix ad prosequendum of the decedent's estate, sued the defendants under the Death Act and also sued as general administratrix to recover for the deceased's pain and suffering during the approximate period of one-half hour which intervened between the time of the collision and the time of his death. Defendant A.E.A. Co., Inc. counterclaimed for property damage joining the deceased's employer, Norman Krefsky. The claim of plaintiff as general administratrix was dismissed at the close of her case for reasons not related to the issues here presented and she does not appeal from that action. The issues were submitted to a jury which found for plaintiff, as administratrix ad prosequendum , in the sum of $35,000 against both defendants, and for plaintiff and Krefsky on the counterclaim of A.E.A. Co., Inc.
Both defendants appeal from the judgment in plaintiff's favor, and A.E.A. Co., Inc. also appeals from the judgment against it on the counterclaim. The appeal with respect to the counterclaim depends upon the same grounds urged for reversal of plaintiff's judgment.
The grounds so advanced by defendants in common are: (1) that defendant White was not guilty of negligence which was the proximate cause of deceased's injury and death; (2) that deceased was guilty of contributory negligence; and (3) that the verdict was against the weight of the evidence. Defendant A.E.A. Co., Inc., additionally contends there was error in that there was no evidence showing White to be its agent or servant and, furthermore, the court erred in its treatment of the issue of vicarious liability. Defendants' motion for a new trial was denied.
The brunt of the first challenge is addressed to the issue of proximate cause rather than to the issue of negligence. However, since defendants' treatment seems to suggest as well that there was no evidence of negligence we will first consider this question.
Insofar as the motions for judgment are concerned, plaintiff was entitled to the benefit of all legitimate inferences favorable to her. Rapp v. Public Service Coordinated Transport , 9 N.J. 11 (1952). Despite great contrariety in the proof, there was ample evidence from which negligence could be found.
The setting was this. The accident occurred on State Highway No. 9-4 in the Township of Manalapan, Monmouth County. The highway consisted of two concrete strips, with black-top surface area on each side of the concrete part of the highway. Defendants refer to the black-top area as shoulders, whereas plaintiff prefers to treat it as a paved portion of the highway proper, designed for regular travel. In our view, neither characterization is crucial, and we will here assume that the black-top areas are shoulders.
One of the tires of the tractor-trailer unit driven by White had become deflated and White had pulled over to the blacktop shoulder and parked. He telephoned the corporate defendant for instructions and was advised to remain there until another vehicle arrived with another tire. Deceased was proceeding in the direction in which the tractor-trailer was parked and crashed into its rear. Some testimony fixed the time interval between the parking and collision at less than 15 minutes, and other testimony fixed it at 45 minutes.
The time was night. There is no disagreement that it was a dark night. The tractor-trailer was parked near a gas service station which had considerable artificial illumination. But there was evidence from which it could be concluded that the station's lights contributed little or nothing to the illumination of the highway. There were no highway lights. There was a conflict as to whether or not the trailer's lights were lighted. The jury could have found that the only light burning was a clearance light on the upper part of the right-hand side of the trailer toward the rear and that light had the visibility of a lighted match. The jury could also have found that White did not have with him the flares required by R.S. 39:3-64 and did not place any flare on the highway until after the crash.
There were various descriptions of weather conditions, ranging from substantial visibility to a foggy condition so dense that nothing was visible more than five feet beyond the front of a vehicle. There was evidence that in the area there was a drifting mist or fog which could account for the divergent testimony.
We think it clear that there was evidence from which the jury could properly conclude that White was guilty of negligence in not providing adequate lighting upon the vehicle and in failing to have and display the required flares. Hence, the trial court properly refused to rule for defendants as a matter of law on the issue of negligence.
We proceed to the issue of proximate cause. Additional facts bear upon defendants' claim. ...