Clapp, Jayne and Francis. The opinion of the court was delivered by Jayne, J.A.D.
[41 NJSuper Page 576] The life of William D. VanDerbeek was tragically and needlessly sacrificed. It was at 3 o'clock on the clear and promising morning of June 9, 1953 that one Martha R. Conlon was continuing to prolong her recreational leisure of the preceding day. With her mind probably disturbed by the influence of the consumption of some quantity of intoxicating liquor she was at the stated hour operating her Pontiac station wagon in a westerly direction on the east-bound lanes of the dual highway known as U.S. Route No. 22 in the Borough of Lebanon, Hunterdon County, when her vehicle collided with the east-bound tractor-trailer owned
by the defendant Wayne G. Wessner and driven by the defendant Kermit J. Schwoyer.
In consequence of the collision the trailer was overturned and lay on its left side across the east-bound lanes of the highway. The tractor, the overturned trailer, and the dislodged corn with which the trailer was laden completely blockaded future east-bound vehicular traffic on the appropriate lanes of the dual highway.
State troopers promptly arrived at the scene of the collision about 11 minutes later and immediately ascertained the injuries respectively sustained by the drivers, and surveyed the relative positions of the vehicles on the highway and the hazards which would confront approaching motorists. One of the troopers transported the drivers of the vehicles to the offices of a physician; the other forthwith engaged in the distribution of precautionary warning flares on and along the east-bound traffic lanes at a procession of locations west of the collision, and with the aid of others directed east-bound traffic off the highway into Main Street in Lebanon. Fortunately, neither driver was very seriously injured.
A wrecking truck with its attendant and members of the Lebanon Volunteer Fire Department, of which the decedent, William D. VanDerbeek, was an honorary member, soon arrived to render their services. Many others congregated at and about the scene to observe the conditions.
It was amid such a state of affairs that at 4:04 A.M., about one hour after the occurrence of the collision, a motor truck loaded with 23 tons of coal, owned by one Andrew Mindy and operated by one Harvey Deckert, approached the scene of the collision from the west traveling on the down-grade east-bound portion of the highway at a speed in excess of 60 miles per hour. Its motor was noisily racing "like an airplane engine trying to take off." The coal truck with unreduced speed passed by the several warning flares on the highway and the flashlight signals of the trooper and those of others and violently crashed into the overturned trailer, turning the latter completely around, moving it some 70 feet to the east, and originating a conflagration the
flames of which ascended 45 feet. The decedent, who was at the time in the immediate vicinity of the trailer, suffered bodily injury from which he died on the following day.
We are at present concerned with an action instituted by Emma K. VanDerbeek and Anna V. Ramsey in their capacities as general administratrices of the decedent's estate and by Emma K. VanDerbeek in her capacity as administratrix ad prosequendum of the decedent to establish the alleged negligence of the defendants Conlon, Schwoyer, and Wessner as a proximate culpable cause of the decedent's untimely death. Motions to dismiss the plaintiffs' alleged causes of action were denied at the conclusion of the plaintiffs' affirmative proof and also at the final submission of all the evidence. The jury rendered a verdict of no cause for action. An application on behalf of the plaintiffs for a new trial was refused. The plaintiffs appeal.
The summary of the facts with which this memorandum is prefaced met no contradiction in essential particulars beyond a scintilla at the trial. The deductions of persuasive rationality are that the former collision was occasioned by the carelessness of the defendant Conlon in undertaking to operate her vehicle westerly over the east-bound lanes of the highway; and that the subsequent disaster was attributable either to the inexplicable gross negligence of the driver of the coal truck or peradventure to a seizure of mental unconsciousness, or again perhaps to some mechanical failure in the operation of the brakes of the truck. The driver, too, lost his life.
Counsel for the plaintiffs theorize in the prosecution of the present action that the herein named defendants ought reasonably to have foreseen from the existing conditions occasioned by the first collision in which they were personally implicated the likelihood of a subsequent mishap, and that they were remiss in their duty to exercise the requisite care to shield other motorists on the highway from probable injury.
The theory is recognizable; the supporting proof, if any, is at most microscopic. In the ...