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Fortugno Realty Co. v. Schiavone-Bonomo Corp.

Decided: June 7, 1962.

FORTUGNO REALTY COMPANY, A CORPORATION OF NEW JERSEY, PLAINTIFF-APPELLANT,
v.
SCHIAVONE-BONOMO CORPORATION, A CORPORATION OF NEW JERSEY, AND HERMAN T. STICHMAN, TRUSTEE OF HUDSON & MANHATTAN RAILROAD COMPANY, A CORPORATION OF NEW JERSEY IN BANKRUPTCY, DEFENDANTS-RESPONDENTS



Price, Sullivan and Lewis. The opinion of the court was delivered by Sullivan, J.A.D. Price, S.j.a.d. (dissenting).

Sullivan

Plaintiff Fortugno Realty Company appeals from a judgment of the Superior Court, Law Division, dismissing its complaint on motion of defendants at the close of the evidence. R.R. 4:51-2. Plaintiff charged that defendants Schiavone-Bonomo Corporation (S-B) and Herman T. Stichman, trustee in bankruptcy of the Hudson & Manhattan Railroad Company (H & M), negligently damaged plaintiff's motor truck scale by attempting to weigh a truck "carrying a total weight in excess of the legal limit of the said truck."

In assessing the propriety of the trial court's action we are limited to a determination as to whether the proofs were such as to raise issues of fact requiring submission to a jury. They must be so submitted in "any case in which reasonable men might honestly differ as to the conclusions

to be drawn from the evidence." J.L. Querner, etc., Inc. v. Safeway Truck Lines, Inc. , 65 N.J. Super. 554, 560 (App. Div. 1961), affirmed 35 N.J. 564 (1961).

The facts viewed most favorably for plaintiff, giving it the "benefit of all legitimate inferences which are to be drawn therefrom" in its favor (Querner, supra , at p. 560), revealed that on December 2, 1957 plaintiff's motor truck scale, installed in 1946, was located on land in Jersey City which it had leased to C & C Trucking, Inc. (C & C), "an affiliate family corporation." C & C customarily used this scale in connection with its trucking business. On infrequent occasions, "maybe ten a year," S-B, a scrap dealer, was permitted to use the scale. On those occasions one Clinton Ruble, vice-president of C & C, who was a licensed public weighmaster, would do the weighing and for a fee of 50 cents would provide S-B with a certified weight slip. No charge was made for the use of the scale.

The truck, owned by S-B, was operated by its employee, who was accompanied by an H & M stock foreman.

The proofs showed that pursuant to a contract between S-B and H & M dated November 6, 1957, the former, on December 2 aforesaid, was removing three lots of motors and motor shells, purchased by it from H & M, from the latter's yards located a few blocks from plaintiff's premises. Pursuant to the aforesaid contract the motors and motor shells were to be removed by S-B and, at the seller's expense, weighed by a certified weighmaster to be designated by H & M. The purchase price of the scrap was dependent upon its weight so established. The contract estimated the weights of the three lots in gross tons which, when converted to pounds, were:

"Lot A -- 11 General Electric Traction Motors, Model No. 259 complete."

[37,408 pounds]

"Lot B -- 3 General Electric Traction Motor Shells, Model No. 259."

[6,048 pounds]

"Lot C -- 16 General Electric Traction Motors, Model No. 212 Complete (armatures and shells not all assembled)."

[87,673.6 pounds]

To determine the "load" weight the procedure employed was first to weigh the empty truck to find the tare weight; the loaded truck was then weighed to ascertain the gross weight, the difference reflecting the net weight of the load.

The scale was built above a pit located adjacent to the building. The scale platform consisted of a "forty foot concrete deck." The "scale house" located inside the building contained a dial calibrated to 50,000 pounds and a "beam" marked to 30,000 pounds, but the manufacturer's rated capacity of the scale was 60,000 pounds with "ten to fifteen percent" tolerance. Plaintiff conceded that it did not advise defendants as to the scale's capacity either by direct statement or by posted notice.

On December 2 one Bruno Tomaszewicy, an employee of S-B, accompanied by an H & M stock foreman as aforesaid, drove the truck, then empty, onto plaintiff's scale where the weighing as designated by H & M was to take place. The truck was a three-axle dump truck, with double wheels on the rear axles. (Whether it was a six or ten-wheeled vehicle will be hereinafter considered.) The New Jersey registration certificate for the truck listed its "license load capacity" at "40,000 pounds." The manufacturer's weight rating was, gross weight, 45,000 pounds.

By use of the scale the tare weight of the truck was initially determined to be 19,620 pounds. The truck was then driven to the H & M yards and there loaded with "11 G.E. 259 motors complete" (its "first load" on the morning of December 2) and, upon its return to the scale, the gross weight was determined to be 55,580 pounds, the motors weighing 35,960 pounds. Following delivery of that material to the S-B property the truck was again driven on the scale at about 1:30 P.M. Its tare weight was then determined to be 19,500 pounds (the 120-pound differential

between the first and second weighings of the truck was stated to be caused by the consumption of gasoline in the truck's tank). Three "G.E. 259 motors complete" were then loaded on the truck and a gross weight of 25,300 pounds determined, the motors weighing 5,800 pounds. The truck then proceeded to the H & M yards where eight G.E. 212 motors with shells were added to the load. Tomaszewicy and Ernest H. Heinen, stock foreman of H & M, returned to the Fortugno scale for the third time that afternoon to weigh the truck and contents. Ruble said he did not see the truck come on the scale as he was then in the office, but that he "heard a boom outside" and saw "this red truck sitting on this scale" and "one end of the scale * * * down into the pit." Tomaszewicy, in his deposition, part of which was read into the record at trial, stated: "[W]hen I pull on the scale, when all wheels was on the scale, right away I hear something cracked and truck went down." The truck and contents were then taken to the S-B scale where the gross weight was determined to be 69,280 pounds.

At the conclusion of plaintiff's proofs the trial court reserved decision on defendants' motion for an involuntary dismissal. Defendants thereupon rested and moved for judgment of dismissal. The trial court, finding that there was "no evidence of any negligence of the defendants and that there" was "no issue for determination by the jury," granted defendants' motion.

Plaintiff urges several grounds for reversal of the judgment of dismissal. We now only consider the arguments that the trial court erroneously held that (a) N.J.S.A. 39:3-84 had no applicability to the issues involved herein, and (b) there was no proof of any negligence on defendants' part.

N.J.S.A. 39:3-84 is a section of the Motor Vehicle Act regulating the weight of commercial vehicles, including load, operating on any highway in this State. Under said section of the act the allowable maximum combined weight of a

three-axle, six-wheeled vehicle is 40,000 pounds. There is no specific provision covering a ...


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