Clapp, Goldmann and Ewart. The opinion of the court was delivered by Clapp, S.j.a.d. Ewart, J.A.D. (dissenting).
[30 NJSuper Page 98] This, in the main, is a fact case. A car driven by defendant Leo J. Tears, in which plaintiff was a passenger, ran into the rear of a stalled truck of defendant Jersey Central Power & Light Co., driven by defendant
Edward J. Walling. The verdict was against the three defendants, and they appeal.
The accident happened 4 o'clock Sunday morning on Route 36 at its intersection with Broad Street, Keyport, N.J. The testimony was in conflict as to whether it was raining or drizzling heavily or slightly, and as to the visibility. It was still dark, but at the intersection there were two overhead arc lights and also two traffic lights. Route 36 at that point is a two-lane concrete highway, 20 feet in width, with a macadam shoulder, on each side, of about 12 feet in width. The truck, when stalled, was facing north, right in the way of northbound traffic, with its left wheels at or very close to and parallel with the white center line and with its front wheels at the white stop line at the intersection. The truck had stopped for a traffic light, and the engine stalled and would not start after the light changed. For four to five or six to eight minutes the truck with its crew of five men stood there, a number of cars passing it, before the Tears' car, proceeding northerly, hit it.
Did the court err in denying motions for dismissal and for judgment made by defendants, Jersey Central and Walling? The first matter here is whether there was negligence on the part of these defendants. Tears testified that "there were no lights at all on the back of the truck," though others testified that the tail light was lit. At any event, Tears said he saw the truck and the red reflectors on its rear iron grille.
More serious was the fact that the truck lacked the three flares, which are required by N.J.S.A. 39:3-64 outside of a residence or business district and which Walling knew had to be on the truck. Was the place where the truck stalled, within a residence district; that is (see N.J.S.A. 39:1-1), was it within
"that portion of a highway and the territory contiguous thereto * * * where within any six hundred feet along such highway there are buildings in use for business or residential purposes which occupy three hundred feet or more of frontage on at least one side of the highway?"
To constitute any 600 feet a residence district, there must be, at least, on one side of the street, for example, 10 buildings, each averaging 30 feet front, each on a lot averaging 60 feet front; or, for example, 7 buildings each averaging 43 feet front, each on a lot averaging 86 feet front. A policeman testified that it was a residential district, but on cross-examination it appears clearly that he did not have in mind the statutory definition. Defendant Tears testified that it was a semi-residential district. At any event the testimony, taken with a photograph of the highway at the intersection (the photograph looks north, but Tears said the area "looks pretty much the same in both directions at that point in the highway"), furnished ample evidence upon which the jury could have found that this was not a residential district.
Failure to put out flares was a matter to be considered by the jury in determining whether or not there was negligence. Jones v. Lahn , 1 N.J. 358 (1949). Such is the law even though Tears saw a flashlight with a light "the size of your fist" (other proofs showed it as a heavy portable light with a half-mile beam) which was being waved by a Jersey Central employee 65-75 feet to the rear of the truck. Flares one in the center of the northbound lane of traffic a hundred feet behind the truck, and another at the left side of the truck, would have been much more indicative of a disabled truck than this waving light was. Further, see Restatement of Torts § 437.
It is urged that the violation of N.J.S.A. 39:3-64 was not an issue in the case as between plaintiff and defendants, Jersey Central and Walling, because the statute had not been pleaded. In the complaint and pretrial order it was alleged by plaintiff that "there were no warning signals of any kind, manual or mechanical, given to advise of the presence of said truck." However, this question need not be considered by us. No objection was taken below either when plaintiff on cross-examination adduced evidence with
respect to the matter, or at any other time, and it may therefore be said that the issue was tried "without the objection of the parties." R.R. 4:15-2.
Even more important to the decision here than the matter of flares is the evidence from which the jury could properly have found that the five "pretty husky men," the Jersey Central employees on the truck at the time, could have pushed it from the highway to the "reasonably" level shoulder thereof in the four to eight minutes it stood there before the accident. This proof was accentuated by the fact that the foreman of these men first said that he did not think five men could push the truck off the road and then changed his testimony stating that there would not have been "a great deal of difficulty for five men to push that truck."
So we conclude that fairminded men might reasonably have found negligence on the part of the defendants, Jersey Central and Walling. Indeed that matter is hardly controverted in their brief. The point seriously pressed here is that this negligence was not the proximate cause of the accident.
The argument on the matter of proximate causation is based upon Tears' story. He and plaintiff had left Jersey City at 10:30 P.M. Saturday to spend Labor Day weekend at the shore, endeavoring to look up a friend there. Tears went into two bars (among other places) to find him, but did not recall "exactly" whether he had any refreshments at any of these bars. He did not remember "actually" whether he had any beer or whisky at any of them, but there is "a very good possibility I may have" had something to drink between midnight and 3:00 in the morning. It may have been a highball. At any event, finding themselves unable to secure accommodations at the shore, Tears and plaintiff turned back toward Jersey City in the early morning.
Tears' story was that when he first saw the truck, it was 150 to 200 feet away. His impression then was that it was moving. His second impression was of a man stepping around the right side of the truck to the rear waving the
above-mentioned flashlight, "waving me by." The man was about 40 feet from Tears when Tears first saw him. Tears then "pretty much determined" that the truck was stopped. "Not knowing what the conditions were, there was no emergency, no reason to stop." He "started to swing" out to the southbound lane and had gotten the car half-way or three-quarters way over the white center line, so that his headlights were lighting up the road beyond the truck. At that point two men (who, Tears states, had become scared) "definitely" jumped out, jumped out like rabbits, "actually leaped," "started to dodge" into that lane and were then "standing partially in the southbound lane." At other places in the testimony Tears gave versions differing from this slightly: at one place he said one of the men "jumped right out into the middle of the lane and one started to hug the side of the truck"; and at another place he said he was not certain whether they were going across the road or were hugging the side of the truck. At any event, Tears was about "a car length, two car lengths behind the truck" when these two men appeared. To avoid them, Tears "slammed on the brakes * * * and the car started to swerve * * * to fishtail like that on a wet pavement * * * the back was swaying." Before the police court he testified that he turned the wheels into the back of the truck.
Defendants, Jersey Central and Walling, themselves, though they rely on Tears' story, claim that his credibility was completely destroyed. The story that two or one man jumped into the southbound lane was denied. Four members of the Jersey Central crew who testified, all told a story that hardly comported therewith. The testimony as to the fifth member of the crew was that the force of the collision brought the hood of the truck down on his back (he was apparently looking at the engine at the time), and so he undoubtedly was not one of those who so jumped. A photograph of Tears' car after the accident rather indicates that it was hit fairly near its center and that it struck the truck squarely, and not at an angle as it might have if he turned his wheels to the right into the truck. Moreover one Jersey
Central employee testified that no part of Tears' auto was in the south lane after the accident.
Here is what the foreman who was waving the light yelled at the time of the accident, and he was corroborated by two other employees: "Fellows here comes another car" (a few cars had already passed), and as it kept approaching he hollered "Look out! This guy isn't going to stop." The foreman testified that Tears "was coming at quite a terrific rate of speed, and I stood out there flagging him with that light until the last moment, and I just jumped out of the way myself" In answer to the question "What did Tears do just before you jumped clear," the foreman replied, "didn't do anything so far as I could see." The foreman did not hear or see any skidding by Tears' car.
There were other doubts cast on Tears' story. He said he was travelling 25 to 30 miles an hour. Yet he drove this 4- to 8-ton truck forward 20 to 23 feet, even though its emergency brake was on, and, besides, did $1,005 of damages to his own car. Then there is another matter. If he turned his wheels to the right and into the truck at the time of the collision so as to avoid the two men, and the rear of his car swerved on the wet pavement, would not the rear thereof have swung to the left, causing him to hit the truck on a much more acute angle than it did?
The question here is whether the matters above-mentioned, on the basis of which the jury could have found negligence on the part of the defendants, Jersey Central and Walling -- that is, the failure to have the tail light lit, the failure to place flares on the road, and the failure to push the truck from the road -- were the proximate cause of the accident. The argument by defendants, Jersey Central and Walling, is that Tears saw the truck and that in ...