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Mattero v. Silverman

Decided: December 7, 1961.

LEWIS MATTERO, PLAINTIFF-APPELLANT,
v.
DAVID SILVERMAN AND WILLIAM WIMBERLY, DEFENDANTS-RESPONDENTS



Goldmann, Foley and Nadell. The opinion of the court was delivered by Foley, J.A.D.

Foley

In this negligence case plaintiff appeals in forma pauperis from a judgment for defendants, entered in the Law Division on a jury verdict of no cause of action.

On November 29, 1957 at about 2 A.M. plaintiff, unaccompanied, while driving a borrowed panel truck southerly

on Route 1, Elizabeth, New Jersey, collided with a tractor-trailer owned by Silverman and operated in his behalf by Wimberly. Route 1 is a six-lane highway in which there is a center divider. It was raining at the time and the roadway was slippery.

While the testimony relating to the particulars of the accident was somewhat in dispute and susceptible of conflicting inferences which required that the issues of negligence, contributory negligence, and causation, be submitted to the jury, an hypothesis of fact may be drawn which does justice to the factual contentions projected by the parties and is sufficient to enable us to decide the points raised on this appeal.

The accident occurred at or near the intersection of Route 1 and Lafayette Street where there is a break in the center divider through which U-turning vehicles are permitted to pass. East Grand Street intersects Route 1 two blocks north of Lafayette Street; traffic at that intersection is controlled by automatic signal lights. Williams Street intersects Route 1 between East Grand and Lafayette Streets. Part way between Lafayette Street and East Grand Street there is a diner on the westerly side of the highway.

Wimberly, whose tractor-trailer had been parked in front of the diner facing south, had driven to the break in the divider at Lafayette Street, intending to make a U-turn to proceed northerly on Route 1. As he drove from the diner he observed that the light at East Grand Street was red for traffic on Route 1. Upon reaching the break he turned left and came to a stop to permit approaching northbound traffic to pass. In this standing position the rear of his vehicle projected into the most easterly of the three southbound lanes of Route 1. By then the traffic light at East Grand Street had changed from red to green. Mattero had been awaiting the turn of the light in the most easterly lane of southbound traffic behind a standing vehicle; another automobile was also standing in the lane to his right.

When the light changed Mattero moved ahead in line, about two car lengths behind the car ahead. He was traveling at a speed of 35 to 40 miles per hour when the vehicle in front of him suddenly veered sharply to its right, evidently in an effort to avoid striking defendant's standing tractor-trailer. He testified that he then saw an unlighted "black object" in front of him which "blocked off" the lane in which he was driving, and he "went for the brake pedal." The collision followed immediately and he had no further recollection of events until he awakened in the Elizabeth General Hospital 18 or more hours later.

The complaint filed in the cause is cast in general allegations of negligence, the absence of "proper lights and signals" only being particularized.

Defendants' answer sets forth a general denial of negligence and affirmatively alleges contributory negligence without specification of detail.

The factual contentions of the parties, as contained in the pretrial order, shed no light whatever on the specific facts or legal theories relied upon in support of the countercharges of negligence and contributory negligence. At the trial, over plaintiff's repeated objection, it was directly revealed through a pretrial deposition of the plaintiff, and indirectly through the cross-examination of police officers, that plaintiff ...


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