Clapp, Jayne and Francis. The opinion of the court was delivered by Jayne, J.A.D.
The date of the occurrence of the mishap is May 11, 1954. The scene is a sand pit in the Township of Cedar Grove, Essex County. The plaintiff sustained bodily injuries for which he sought to recover from the defendants compensatory damages. The verdict of the jury was no cause of action, and from the consequent judgment the plaintiff appeals specifying four reasons for reversal, all of which pertain to the judicial action of the trial judge in the stated particulars.
A mere summary of the evidence will expose the footing upon which the asserted trial errors rest. The spacious pit was one from which for several months prior to May 11, 1954 earth was being extracted by three crane shovels and transported therefrom by as many as 60 dump trucks. The plaintiff had been at the pit in the employ of Kitchell, Incorporated, in the capacity of an oiler for the past two and a half months and engaged in currently lubricating one of the shovels.
The defendant VanKirk was a driver of one of the motor trucks owned by his employer, the co-defendant, Williams. It was the custom and normal practice for the truck drivers upon entering the pit from the highway to place their empty vehicles in line and, as the forward trucks became loaded
and departed, for the next ones in line to back up to the loading shovels progressively.
On the occasion of the accident the plaintiff had just returned from lunch at about 1:30 P.M. and, in quest of a supply of lubricating grease and the brush or applicator, he passed beside VanKirk and his truck waiting its turn to be loaded. Whether the truck was at that time facing the shovel or had previously been turned around preparatory to backing up to the shovel was a circumstance drawn in controversy by the contradictory testimony. The distance of the standing truck from the shovel at the time was likewise a subject concerning which the testimony was divergent and conflicting. However, concededly it was in backing the truck toward the shovel that it collided with the plaintiff and its left rear wheel passed over the plaintiff's leg.
Points I and II advocated on behalf of the plaintiff have been consolidated to read: "The Trial Judge committed prejudicial error in refusing to accept in evidence the signed statement of the defendant VanKirk which contradicted the testimony given by this defendant at the trial." This criticism of the court's ruling has perceptible merit.
Certain it is that a relevant statement or admission against interest made by a party to the action constitutes an affirmative matter of substantive proof by the opposite party. Such evidence is not, as in the case of non-party witnesses, solely to contradict or discredit; it is affirmative proof of probative value. McBlain v. Edgar , 65 N.J.L. 634 (E. & A. 1901); Newhouse v. Phillips , 110 N.J.L. 421, 424 (E. & A. 1933); Ambrose v. Indemnity Insurance Co. of North America , 124 N.J.L. 438 (E. & A. 1940); Schloss v. Trounstine , 135 N.J.L. 11, 15 (Sup. Ct. 1946); Dobrowolski v. Glowacki , 136 N.J.L. 167, 171 (E. & A. 1947); Link v. Eastern Aircraft, &c., General Motors Corp. , 136 N.J.L. 540 (E. & A. 1948); Cherr v. Rubenstein , 22 N.J. Super. 212, 216 (App. Div. 1952).
It has been previously stated that the direction in which the motor truck was facing at the time the plaintiff walked past it and its distance then from the loading shovel were
circumstances accompanying and surrounding the occurrence of the mishap of relatively major importance and in reality constituted the two factual incidents predominantly in dispute.
At the trial the defendant VanKirk testified that when the plaintiff walked past, the rear of the truck was facing the shovel and at a distance of about 30 feet from it. Upon cross-examination by counsel for the plaintiff he was confronted with a written statement purporting to have been taken from him on May 17, 1954 by a "trial prepman" in which it is represented that: "The front of my truck was facing the Unit Shovel when I saw Corbett pass me, and I then made a right hand swing in preparation to then back up to the Unit Shovel to be loaded," and "At the above described ...