Eastwood, Smith and Francis.
This matter is before the court on an appeal from the Hudson County Court, whereby said defendants were found guilty of the transportation of dangerous articles in violation of L. 1950, c. 128, § 11 (R.S. 39:5 B -11) of this State.
Appellant contends that the learned trial judge erred in refusing to dismiss the complaints at the end of the State's case, and that said court erred in finding on the whole case that the tanks were loaded with anhydrous ammonia, an alleged dangerous material and therefore a violation.
Appellant contends that the evidence produced was insufficient to show that a dangerous material was actually being transported. Appellant contends that the cylinders in the truck were actually empty at the time the police stopped the appellant's truck at the entrance to the Lincoln Tunnel.
An examination of the testimony of the arresting officer and the police sergeant in charge of the dangerous cargo
detail for the Port of New York Authority shows the following pertinent facts.
The arresting officers testified that they had some experience with empty cylinders and that they usually were without tags and without tops. The cylinders in question had tops on and were labeled "Anhydrous Ammonia." There was also improper evidence introduced that the Interstate Commerce Commission requires a label to be on when they are full. The learned trial court stated:
"I am going to take it as prima facie proof that these tanks were filled with what the label indicated they carried."
With this statement this court is in full accord. The evidence produced leads the mind of a reasonable man to presume that the cylinders contained what the label stated.
While it would appear that it would have been a very simple matter on the part of the defendants, the driver, and the agent of the company who accepted service, to show that the cylinders were empty, it was the responsibility of the State to prove beyond a reasonable doubt that the cylinders contained anhydrous ammonia and that the vehicle was not properly labeled.
It is apparent from an examination of the evidence that there existed a genuine issue. There was proof of the charge that what defendants were transporting consisted of ...