Goldmann, Freund and Foley. The opinion of the court was delivered by Foley, J.A.D.
In this negligence case defendants appeal from a jury verdict in favor of the plaintiff.
At about 4 P.M. on May 8, 1959, a clear day, plaintiff, an elderly man who is totally deaf, was engaged in trimming grass on the premises located at 141 E. Eighth Avenue, Roselle, N.J. While so engaged he was struck and severely injured by a truck operated by defendant Curry in pursuance
of his business as a wholesale distributor of carbonated beverages, and as a servant of the corporate defendant.
Concededly, the evidence bearing on the focal issues of negligence, contributory negligence and proximate cause was entirely circumstantial.
Russell Smith and his wife Gertrude reside in the dwelling at 141 E. Eighth Avenue, located on the northerly side of the street, three doors from Chestnut Street which intersects to the west. At the northeast corner of E. Eighth and Chestnut there is a residence property which has been partially converted into a delicatessen store operated by John Tylutki. Another residence and a vacant lot separate the Smith and Tylutki properties. Bordering the southerly side of E. Eighth Avenue and across from the Smith property is an athletic field (Simpson Field) in which children are permitted to play after school hours.
At the time of the accident, plaintiff was working on a grass area which lay between the curb and the sidewalk. This area was planted with several separated hedge bushes varying in height from two to four or five feet. The bush under which plaintiff was working was approximately 18 inches inside the curb line.
Plaintiff testified on pretrial depositions and at the trial itself, both times being examined by written questions because of his total deafness. While there were some slight variations in the details of the testimony he gave on these two occasions, it was clear that he claimed to have been facing the Smith dwelling, in a kneeling or bent over position when he was struck; that his feet were either on the curbing or on the grass adjacent to the bush under which he was working; and that whether standing or kneeling in this position his buttocks may have protruded beyond the curb line.
Curry's truck was of the type commonly used for the distribution of carbonated beverages, with an open shelf on each side on which cases could be stacked. On direct examination Curry testified that the body of the truck does not extend beyond the wheels, but he said there was a "two inch
pipe" which was above the right rear wheel, four feet from "the ground" and extended about two or three inches outside the wheel.
He testified further that he was proceeding westerly on E. Eighth Avenue at a speed of five to ten miles per hour at a slight angle toward the curb, preparatory to making a delivery stop at Tylutki's delicatessen; there were no vehicles parked on the street and nothing obstructed his vision; children were playing on Simpson Field; he did not see the plaintiff as he approached or passed the point at which the latter claims to have been working; he first became aware of his presence when he heard a "thud" on the right side of his truck, and he brought the truck to a stop immediately. He said he ...