was not able to say whether the truck came to a stop before it reached its final destination, but she did notice that when the ladder struck the pavement, it jarred the trailer and the vehicle stopped completely until all of the passengers had alighted. The driver of the tractor testified that he traveled toward the exit gate at a speed of from 15 to 17 miles an hour and that, when some distance therefrom, he applied his brakes gently and brought his vehicle to a complete stop about five or seven feet from the gate house. He was then requested by a fellow-employee, sitting alongside of him in the cab of the truck, to pull up nearer to the depot gate house. The witness testified that in letting in his clutch he may have caused a slight jerk of the tractor-trailer. He then alighted and went to the rear of the trailer for the purpose of lowering the steps to permit the egress of the longshoremen from within the trailer, but when he arrived at the rear, he found the steps to be down and longshoremen already descending. He did not notice the plaintiff among them nor did he see anyone lying on the ground.
Although the testimony is conflicting in some respects, it is clear that the evidence does not support a finding that the plaintiff, which in the standing position which he described, was thrown out of the trailer. It is the plaintiff's contention that a sudden stop of the vehicle caused him to lose his grip on the handrail and to be thrown over the barrier at the rear. But such a sudden stop, if it occurred, would necessarily have thrown the plaintiff forward towards the front of the trailer and against other persons riding with him. The barrier at the rear was certainly adequate to prevent a person of the height of the plaintiff from falling out if he were off-balance when the vehicle commenced to move forward with what the evidence shows was at most a slight jerk. Even if the conflicts in the testimony were resolved in a manner most favorable to the plaintiff's contention, that contention is not plausible. However, I do not find as a matter of fact that there was either excessive speed or sudden stopping or starting of the trailer truck but that, as testified by one of the plaintiff's own witnesses, whatever jarring occurred in the course of the movements of the tractor trailer was slight.
Moreover, although plaintiff complains of injuries to his left wrist, hip, knee and ankle, much of his testimony and that of the medical experts related only to his wrist. Less than two months prior to his alleged fall, the plaintiff had been involved in another accident which resulted in a fracture of his left wrist. The overwhelming weight of the medical testimony, based upon a comparison of the X-rays taken after the first and second accidents and examinations of the wrist, negatived the existence of any new injury to the wrist or any aggravation of the earlier injury.
Conclusions of Law
This Court has jurisdiction of the subject matter of this action and of the parties hereto.
The plaintiff has failed to establish a right to any recovery from the defendant. The Federal Tort Claims Act, 28 U.S.C. § 1346(b), permits recovery for personal injuries caused by the negligent or wrongful act or omission of any employee of the United States, but only under circumstances which would create liability under the law of the State in which the injuries occurred. Under the law of the State of New Jersey, to render a defendant liable on the theory of negligence requires a showing that there was a breach of duty, by action or inaction, on the part of the defendant to the individual complaining, the observance of which duty would have averted or avoided the injury. Brody v. Albert Lifson & Sons, 1955, 17 N.J. 383, 111 A.2d 504. The plaintiff in this case has failed to establish that the defendant or its employees breached any duty owing to him. Consequently, the plaintiff is not entitled to recover from the defendant for his injuries, if any.
Judgment should be entered in favor of the defendant and against the plaintiff. An order may be submitted in accordance with the foregoing findings and conclusions.
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