Goldmann, Foley and Nadell. The opinion of the court was delivered by Nadell, J.c.c. (temporarily assigned). Foley, J.A.D. (dissenting).
Plaintiff appeals from the dismissal of the complaint at the conclusion of all the testimony in a case tried with a jury in the Superior Court, Law Division.
The suit was brought to recover property damages sustained to plaintiff's trailer, which was driven under a bridge with insufficient clearance to permit the trailer to pass through. Plaintiff Querner owned the trailer; one Lash owned the tractor. Lash leased the tractor to Querner, and Querner leased the entire equipment, tractor and trailer, to defendant Safeway. At the time of the accident Lash was driving the equipment, accompanied by one Salvato, who directed Lash as to the route to be taken to return to defendant Safeway's trucking terminal. Lash was employed and paid by Querner. Salvato was employed and paid by Safeway. Plaintiff Querner was paid one lump sum by Safeway for the use of the tractor, trailer and driver, Lash.
D'Amato, Safeway's dispatcher, directed Lash to go to New York to pick up a load of meat and return to the Safeway Terminal at Weehawken and then drive the load
to Chicago. D'Amato sent Salvato, a young man of 18, to accompany Lash and help load the truck in New York. As Lash was from Texas and not familiar with the route, D'Amato did not give him the New York address where the truck was to pick up the meat, but instead gave it to Salvato, who was to direct Lash as to the route to and from New York.
Lash testified that on the return trip Salvato told him to make a right turn into a street on which an overpass was located. He said he asked Salvato if the trailer would clear the underpass and Salvato responded in the affirmative, adding that he had been under it before. The truck (12'3" high) failed to clear the underpass by approximately one foot. Lash estimated his speed at the time of impact as 15 to 20 miles an hour. He said he observed no signs either on the road or the bridge indicating clearance height or a warning. Lash, who had been driving tractor-trailers for about seven years prior to the date of the accident, admitted that he didn't judge the comparative heights of the trailer and underpass "too well," but that this was due to his reliance on the representations and experience of Salvato in regard to what was unfamiliar territory.
Salvato testified that his job was completed when he directed Lash through the Holland tunnel, just prior to the accident. He admitted that, in response to a request by Lash for directions, he informed Lash he could "make a right turn at any block." He also testified that one block before the bridge there was a sign about two feet wide with a caption reading: "All Trucks Make a Left-Hand Turn. Low Bridge." He neither told Lash to turn left, nor mentioned the sign. He said that at the time of impact the truck was traveling at about 30 to 35 miles an hour.
Vincent D'Amato, a dispatcher for Safeway Truck Lines, testified that Salvato was hired as a "sight-man" for just one day. The New York address was given to Salvato, not to Lash. On cross-examination the following colloquy occurred:
"Q. Mr. D'Amato, if the truck that he [Lash] was going to be on didn't know its whereabouts, or how to get to any particular destination, Mr. Salvato did the directing. Isn't that a fact?
A. That could be. Yes, sir.
Q. In this case it was the fact, wasn't it?
A. I don't know the conversation -- I said before that I had no conversation with Lash. I assigned a man and where they were to go to pick up the load, Pier 25 North River.
The Witness: I didn't give it (the New York address) to Lash. I gave it to the sight-man who was going with him.
The Court: You gave it to Salvato? You gave Salvato the address?
The Witness: That's right.
The Court: He was the man who was to see that the truck got over to New York, is that it?
The Court: And see that it got back to the --
The Witness: Terminal, yes."
The pretrial order states:
"* * * As a result of the negligence of defendant's employee who was riding on the truck, in choosing a route which he knew or should have known contained overhead obstructions which would not clear the trailer, or in negligently assigning as such driver of the equipment one who did not possess knowledge of the route or routes to be taken, the defendant proximately caused an accident to occur. * * *"
Apparently the theory that defendant was negligent in assigning Lash as driver of the equipment has been abandoned. Plaintiff provided Lash as the driver of the equipment under the lease agreement, knowing that he would have to drive in unfamiliar territory, or at least it should so have known. Furthermore, plaintiff now asserts, in disputing the ruling of the trial court that Lash was guilty of contributory negligence as a matter of law, that the acts of Lash were those of a reasonable and prudent person and that anything that was done to cause this accident was done solely through the acts of Salvato. Plaintiff's contention must be taken as supporting an abandonment of any claim that defendant was liable in assigning Lash to drive the
equipment. In addition, it is clear that plaintiff is not relying for defendant's vicarious liability on any conduct of Lash. On the contrary, plaintiff asserts that Lash is free from negligence.
Accordingly, the plaintiff relies on two theories:
1. The negligence of defendant's employee, Salvato, who was riding on the truck, in choosing a route which he knew or should have known contained overhead obstructions which would not clear the trailer, proximately caused the accident, and as a result defendant is liable under the doctrine of respondeat superior.
2. The leasing transaction constituted a bailment for hire and the bailee for hire is liable for his negligence.
"A motion for judgment of dismissal admits the truth of the plaintiff's evidence and every inference of fact that can be legitimately drawn therefrom which is favorable to the plaintiff and denies only its sufficiency in law. And on a motion for judgment the trial court cannot weigh the evidence but must accept as true all evidence which supports the view of the party against whom the motion is made and must give him the benefit of all legitimate inferences which are to be drawn therefrom in his favor." Melone v. Jersey Central Power & Light Co. , 18 N.J. 163, 170 (1955).
In any case in which reasonable men might honestly differ as to the conclusions to be drawn from the evidence, the issue should be submitted to the jury. Henningsen v. Bloomfield Motors, Inc. , 32 N.J. 358, 410 (1960); DeRienzo v. Morristown Airport Corp. , 28 N.J. 231, 236 (1958); Honey v. Brown , 22 N.J. 433, 438 (1956); Tua v. Modern Homes, Inc. , 64 N.J. Super. 211, 217 (App. Div. 1960).
We must therefore analyze the evidence to determine whether or not it is sufficient to raise issues of fact which must be submitted to a jury.