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Nolan v. Pabsco Corp.

Decided: October 11, 1956.

PAUL NOLAN, PETITIONER-RESPONDENT,
v.
PABSCO CORPORATION, RESPONDENT-APPELLANT



Goldmann, Freund and Conford. The opinion of the court was delivered by Goldmann, S.j.a.d.

Goldmann

Pabsco Corporation appeals from a judgment entered in the Bergen County Court, Law Division, affirming an award granted petitioner Paul Nolan by the Division of Workmen's Compensation.

Pabsco had a trucking yard at 92 River Road, Bogota, where, besides repairing trucks, it did trucking for the paper industry. On the day of the accident petitioner had already been employed by Pabsco for some two months as a yardman, his duties consisting, in part, of handling motor vehicle equipment in and about the yard and driving trucks to and from local companies for loading and unloading. He began work at 4 P.M. that day and made several deliveries. Upon returning to the Pabsco yard at about 9 P.M., yard supervisor Harry Nolan, who is petitioner's father, directed petitioner to tow a certain Ford car out of the yard to make room for trailers needed for a pier shipment, and then to return to the yard to help him finish the work he was doing.

Petitioner proceeded to hook the Ford onto the company tractor and towed it out of the yard. One Sonheim was riding in the Ford. Petitioner testified that as he left the yard he turned right on River Road and drove for a short distance until he came to the underpass and West Shore Avenue, an intersecting street. At that point the Ford "blew up." Petitioner made a left-hand turn on West

Shore Avenue, stopped, and then unhooked the tractor and drove it about 75 feet forward. He ran back to the Ford and tried to put out the fire. While doing so, the tractor rolled back, knocked him down and ran over him, with resultant serious injuries.

On cross-examination petitioner said that the Ford belonged to his father, had been in the yard for some two months, and that his father had sold the car to Sonheim. He admitted that he and Sonheim had worked on the car for a couple of weeks previously, installing a new motor, and that Sonheim had obtained license plates for the car. He also admitted that he had intended to tow the car to Sonheim's home on West Grove Street, Bogota. Sonheim's home could be reached by turning left on River Road after leaving the yard and, upon proceeding a distance, turning right into Grove Street. The route petitioner took when he turned right on River Road, going through the underpass and turning left on West Shore Road, would have taken him to Sonheim's home by a longer and more circuitous path. Petitioner explained that he had turned right on River Road through force of habit; he was "just used to making a right-hand turn all the time coming out of my yard." He vigorously denied that the motor of the Ford had been started up in the Pabsco yard, or that he attempted to move the Ford with the use of the rebuilt motor, or that what he was actually trying to do was to test the motor to see if it was all right. He did not know whether Sonheim had turned the ignition on while the Ford was being towed. Sonheim was not available as a witness because he was serving in the Armed Forces in Germany.

The father, Harry Nolan, testified that petitioner was under his direct supervision, and confirmed the fact that he had directed him to pull the Ford out of the yard because he needed the room for the export job. On cross-examination he stated that the car was not his but belonged to Sonheim, and that he had lent the young man a few dollars on it. He was then shown two sheets of paper bearing his signature, and said they had been written out by

one McGeary, claims investigator for the insurance carrier, but that he had not read them before signing. He admitted having talked with McGeary before this was done, but not about the accident. Nolan was then asked where he thought "they [apparently petitioner and Sonheim] were going to take that car with a tractor, not knowing whether the Ford could go on its own motion or not"; he replied that he did not know where they were going to take it -- "I only told them to take it out of the yard."

Respondent employer presented medical testimony as to the extent of petitioner's permanent disability, and only two other witnesses. The first was an engineer who used a map to locate the Sonheim home and the two courses of travel from the Pabsco yard to that place. The other was claims investigator McGeary, who testified as to the circumstances surrounding the taking of Harry Nolan's statement and what Nolan had said at the time. The offer of the statement in evidence was objected to, and the objection sustained by the deputy director.

We first deal with this ruling. Respondent claims it offered the statement for the purpose of attacking Nolan's credibility, not to establish an admission against interest, and the statement should therefore have been allowed in evidence. The contention has no merit. The rule is that where it is sought to attack the credibility of a witness by use of his prior and allegedly inconsistent written statement, the party offering the statement must first lay a foundation therefor. This must be done by calling the attention of the witness to the contents of the paper, and then specifically asking him whether he had not made the several statements contained therein. Wassmer v. Public Service Electric & Gas Co. , 122 N.J.L. 367, 372-373 (E. & A. 1939), quoting with approval from Daum v. North Jersey Street Ry. Co. , 69 N.J.L. 1, 6 (Sup. Ct. 1903), affirmed ...


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