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State v. Tuccillo

Decided: October 30, 1962.

STATE OF NEW JERSEY, COMPLAINANT-RESPONDENT,
v.
MICHAEL TUCCILLO, DEFENDANT-APPELLANT



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

Conford

This appeal challenges the revocation of defendant's driver's license for one year by the Division of Motor Vehicles upon a determination by the Acting Director after hearing of careless driving (violation of N.J.S.A. 39:4-97) resulting in a fatality. The contention is that the determination of guilt of the offense was not justified by the evidence and was arbitrary.

The proofs adduced at the hearing before a hearing officer of the Division established these facts. Defendant left his place of employment by car at about 9:00 A.M. on Wednesday, October 5, 1960, after finishing his work as a truck loader at a Woodbridge bakery, some 15 miles west of the point of accident. He was driving northeasterly on Route #1 toward his Hoboken home, traveling about 41 miles per hour. At about 9:30 A.M. he was traversing an overpass at the traffic interchange at Routes #1 and #22 and descending the ramp for express traffic, at the foot of which

there is a long, triangular, grass-covered island separating three roadway lanes for local traffic on the right from two for express traffic on the left. The decedent, an employee of the State Highway Department, was standing on the island, picking up refuse. Defendant's vehicle left the roadway, went up over a concrete curb onto the island, and struck the decedent with such force, as described by an eyewitness, as to send him "flying through the air * * * maybe four feet off the ground." The man fell to the pavement, "hit his head and slid to a stop." After impact, the vehicle went across the island entirely and onto the local traffic lanes, swung back across the island to the express lanes, spun around, hit a pole and stopped. At that point, three of the tires on the car were found to be flat. The car stopped about 160 feet from the point of impact with the decedent and 148 feet from where the body of the decedent lay on the roadway.

Defendant testified as follows. He was 50 years of age. His work hours are irregular. On Monday, October 3, 1960, he finished work at 8:30 P.M., having put in a stint from noon that day. Normally, his next working period would have begun at 9:30 A.M. on Tuesday, October 4, 1960. But because of the illness of another employee, he was required to report at 11 P.M. Tuesday evening and work until 9 A.M. Wednesday morning, and he did so. Defendant went to bed Monday evening at 11:15 P.M. He stated he had "about eleven hours sleep, figuring to about eleven o'clock, eleven-thirty, in the morning." Actually, this would have meant 12 hours of sleep. He idled during the day, had "supper" at 5 P.M., then read the papers, lay on the couch near the television and dozed "on and off," before leaving for work at 10 P.M. and reporting at his job at 11 P.M. It thus appears, even crediting defendant's story as to when he arose Tuesday morning, that by the time of the accident he had not been to bed for 22 hours or more, the last ten of which were spent at his job of loading trucks and cleaning up the place for the next crew. The only rest he had had

in that 22-hour span was the "on and off" dozing on a couch, inferably interspersed with watching television, during early Tuesday evening. Moreover, this span of time was a period during which he would normally have finished work Tuesday afternoon at 5 P.M. and have been off until 11 P.M. on Wednesday. Nevertheless, he testified he was not sleepy or drowsy while driving home, just "a little tired."

Defendant testified he was "coming down the ramp," and

"to the best of my knowledge, I can remember only that I was coming down the ramp and there I completely blacked out. I don't remember. The next thing I remember was an impact, and as a result of this impact I immediately found my senses again. I had the wheel in my hand, and as I looked out, I realized I was on this island, and the next thing I heard is a boom, boom. I figured the tires were going. I heard a couple of blowouts; you know, like an explosion, a couple of explosions. Then in the meantime I looked up and I saw this man in front of me.

Q. About how far in front of you? A. I figure about when I saw him it must have been twenty-five or thirty feet.

Q. What did you do? A. I tried to hold the car down. In the meantime, the car was trying to pull me off to the left. In the meantime, I was trying to avoid hitting this man, and I was almost successful. Then I sidewiped him. I was trying to hold the car down, and at the same time the car was trying to pull me to the left."

He testified the blowouts impaired his control of the car. He never had experienced such a "blackout" before. He was not sick at the time. He had been driving 33 years, had had only four or five accidents, of minor ...


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