Goldmann, Burton and Sullivan. The opinion of the court was delivered by Goldmann, S.j.a.d.
[40 NJSuper Page 578] Plaintiff appeals from a judgment of involuntary dismissal entered in the Law Division at
the close of plaintiff's case, in favor of defendant Breyer Ice Cream Co. and the individual defendants Zell, Holzwarth and Kinback, for failure to establish a prima facie case. He contends there were fact questions presented which should have been submitted to the jury, instead of being determined by the trial judge on defendants' motions for judgment under R.R. 4:51.
The action was brought against Castles Ice Cream Company, the Breyer company and the individual defendants, for personal injuries sustained by plaintiff when he found himself trapped inside a refrigerated ice cream delivery truck he was using to make deliveries. Plaintiff consented to a dismissal as to Castles in the course of counsel's opening to the jury. Castles, as plaintiff's employer, had raised as a defense that he had filed a petition against it in the Workmen's Compensation Division, had been successful in obtaining a compensation award, and thus was barred from any recovery in the Law Division action.
Plaintiff had worked for Castles as an ice cream loader for over a year. At the time of the accident he had for some five months been employed as a route salesman of ice cream and ice cream products. In this connection he was furnished with a specially designed refrigerated truck; he testified that he had been driving the particular truck which figured in the accident for two or three months. The truck had three compartments, each four feet wide, five feet long and four feet high, the bottom of the doors being about chest high. The center compartment in which plaintiff was trapped was used for the storage of ten-quart cans of bulk ice cream. The compartments were refrigerated to a temperature well below freezing. They were insulated and lined with tin; the floor was covered with bakelite to prevent the cans from freezing to the metal.
Each of the compartment doors was equipped with a specially designed latch, with a button or cylinder head which, when pushed in, would lock the mechanism and prevent the opened door from closing. Other safety devices were available to safeguard the driver from accidentally being
locked inside a compartment. There was a heavy, two-foot chain attached just inside the door, which could be pulled out and left hanging outside the doorframe, thus preventing the door from closing. There was also a safety key, held in a wall clamp inside the truck near the door, with which the door could be opened in case the driver found himself locked in. The ceiling of each compartment was equipped with an electric light bulb.
On November 6, 1952 plaintiff came to work at the Castles plant about 7 A.M. His superior, defendant Holzwarth, traffic manager for Castles, assigned him to the same truck he had been driving during recent months. It was fully loaded. Holzwarth also assigned plaintiff his route. Plaintiff made 14 or 15 stops that day; he delivered items from the front and rear compartment at "almost every stop." He also testified that during the day he had to climb into the several compartments in order to take out products not within easy reach -- at one place in his testimony he said this happened at each stop. When he did so he would climb up the side of the truck and reach for the ice cream; his body would be well inside but he would keep one foot outside the truck to make sure that the door would not close on him. He did not use the chain in the middle compartment until the very last stop of the day. On this occasion he climbed up into the compartment in the usual fashion, keeping his foot outside the door, for the purpose of rearranging the contents to prevent shifting and damage to the cans on the return trip to the Castles garage. He testified that he then noticed the chain was curled and frozen to the floor; he proceeded to loosen it, and when it was free he turned around to drop the chain out of the door. At that moment, when his body was completely inside the compartment, the door suddenly slammed shut, imprisoning him. He groped about in the dark for the light bulb, but found only two pieces of wire sticking out of the socket. He said he then felt all over the walls in search of the safety key which would have released the door. He was unable to find it. There followed a desperate attempt to tear the lining off the walls and to
attract attention by banging and shouting. After 2 1/4 hours the customer at whose place of business plaintiff had stopped finally heard him and opened the door.
Defendant Breyer admits ownership of the truck. The theory of plaintiff's case against the company is that it was bailor of the truck to Castles and as such was under a duty to furnish a vehicle which was safe for use and which would not expose plaintiff to risk of harm. He seeks to hold the individual defendants liable because they participated in furnishing a truck which was not safe and which exposed him to risk of harm, and this because of their failure properly to supervise and inspect the vehicle and to instruct plaintiff in the use of the safety devices.
Plaintiff's testimony makes it entirely clear that he knew of the danger of the compartment door accidentally closing and locking him inside the truck. He also knew the reasons for having the chain and a safety key in each compartment, and how they might be used. A fellow employee had instructed him about keeping one foot outside the door when reaching into the compartment. Plaintiff denied knowing before the accident that by pushing the safety lock button on the door latch as soon as the door was opened he would set the lock and prevent the door from slamming shut. However, he admitted that the lock was in perfect operating condition on the day in question.
The trial court found there was no duty owing plaintiff by the Breyer company, since he did not establish by what authority Castles used the truck. Assuming a bailment, plaintiff likewise failed to show any violation of Breyer's duty to provide a reasonably safe vehicle from which to operate. The court found there was nothing wrong with the lock or the chain; the truck was a safe vehicle with which to work had plaintiff followed instructions and his own practice of keeping one foot outside the door. The trial judge similarly concluded there was no breach of duty by the individual defendants.
It should be noted that in their answer to interrogatories, which answers were offered in evidence by ...