Eastwood, Goldmann and Schettino. The opinion of the court was delivered by Goldmann, J.A.D.
The trial court granted defendant's motion for judgment of dismissal after plaintiff had completed the liability portion of the negligence action he had instituted against defendant. The court held that plaintiff had failed to prove negligence and proximate cause. This appeal ensued.
Defendant maintained a loading platform at the rear of its bakery premises on L Avenue, Newark. The platform was 44 inches above ground level. Plaintiff came to these premises on the afternoon in question, as he had some thousands of times over a period of at least eight years. He was a truck driver employed by an independent trucking company whose principal business was to supply trucking services to defendant. On this particular occasion plaintiff operated a
tractor-trailer combination. He was assisted by a helper who got off the truck and opened the rear doors of the trailer when they arrived at the rear of the building, preliminary to plaintiff finally backing the truck to a position flush with the loading platform. Having backed up the tractor-trailer, plaintiff descended from the cab of the tractor and attempted to jump up to the loading platform in order to make known to defendant's representatives the arrival of the truck and to assist in loading merchandise into the body of the trailer. He placed both hands on the edge of the loading platform. What happened after that is best told in his own words:
"After I put my hands on the edge, why, I threw my left leg, left foot and leg up on the edge of the platform and assisted myself with my hands to pull myself up that way, to raise my whole body up on the edge, and as I started to arise -- I was still in a stooping position, and I put my right foot up, and my right foot slipped a little and I fell out the doorway on to the concrete. I fell out and fell on the concrete."
His testimony on cross-examination was:
"Q. Your right foot had not yet come up to the platform level. Is that right? A. When I fell, it had come up.
Q. But was it placed on the platform with your left? A. My left foot was on the platform and I had brought my foot up and set it on the platform. I was in a stooping position and my right foot slipped a little and I fell out.
Q. Were you holding on to the door at that time? A. No, sir. My hands were on the floor."
It was further brought out on cross-examination that plaintiff had many years before suffered an injury to his left foot, as a result of which he wore a heel bandage at all times. He admitted he had a "very slight limp" in the left foot before the date of the accident. Asked whether he hadn't told a Mr. Saunders of defendant company, some five months after the event, how the accident had happened -- viz. , "As I stood in a standing position I sort of lost my balance and attempted to grasp the door frame to prevent myself from falling." -- plaintiff said he would not deny having made such a statement,
but just didn't remember it. He admitted having vaulted onto the loading platform in the same way ...