Goldmann, Freund and Foley. The opinion of the court was delivered by Goldmann, S.j.a.d.
Joyce Schneider, the 11-year-old daughter of plaintiff, was struck and killed by a pickup truck owned and operated by defendant. Plaintiff sued for damages, in his individual right and as administrator ad prosequendum. The jury returned a verdict of no cause of action; plaintiff's motion for a new trial was denied, and he appeals.
The accident happened shortly after midafternoon on November 30, 1960, on the north side of the Morganville-Tennant Road in Monmouth County, some 200 feet east of its intersection with Woolytown Road. The road is blacktopped, 22-24 feet wide, with a 12-inch high grassy shoulder on the northern edge. As one travels west toward the Woolytown intersection the road runs upgrade and curves to the left. Its two lanes are separated by a white dividing line.
Defendant was driving his truck westerly in the northern lane. It was a bright, sunny day, and there was no traffic. Joyce had alighted from the school bus at the Woolytown corner, accompanied by Barbara Smith, a schoolmate. They walked easterly along the northern side of the road in the direction of Joyce's home. When they passed the home of Suzie Emmons, a much younger girl, Suzie and her friend
Linette Lore came out of the house and walked behind them. As the four girls approached the place of the accident Joyce was nearest the northerly side of the road, with Barbara to her left. Linette was some 15 feet behind, with Suzie to her left.
There were four witnesses to the accident -- defendant and Joyce's three companions. Linette and defendant were the only two of the four who testified. Linette was 10 years old at the time of trial, and 8 1/2 when the accident happened. Her age probably accounts for her very brief direct examination and the rather short cross-examination. Testifying for plaintiff, she said that she and her girlfriends had been walking on the grassy shoulder beyond the northerly edge of the road, and that Joyce was standing on the grass when defendant's right front fender struck her. On cross-examination she said that she and Suzie had been boxing, and when they came out of Suzie's home they saw Joyce and Barbara and started walking behind them. Asked whether she and Suzie were still boxing, or whether they boxed with the bigger girls as they walked along, her answer was "no." She did not remember whether they said anything to Joyce and Barbara except "hello." She said she had seen the accident happen; she was sure that Joyce was on the grassy shoulder but, strangely enough, said she did not see defendant's truck go up on the grass.
Joseph Lanzaro, who arrived at the scene before anything had been moved, found Joyce lying on the grass, her body parallel to the road about two or three feet from the paved portion. The truck was on the northerly side of the road, facing west, about ten feet from the body. When he asked defendant what had happened, the answer was, "All I can say, I don't know. The sun blinded me."
Defendant testified that he was driving west at 25-30 miles an hour just before the accident. He was about 700 feet from the girls when he saw them walking in the road. Joyce was 4-5 feet out on the paved portion and there was another girl alongside the road, and that the truck had struck Joyce. He
was 200 feet away. At that point he drove his truck into the left lane in order to avoid them, about a foot of the vehicle remaining to the right of the center line. He testified that the sun was "awfully bright and blinding," so that he pulled his sun visor down, keeping watch straight ahead for traffic which might be approaching over the crest of the incline. He heard a thud, came to an immediate stop about 8-10 feet from the right edge of the road, and saw Joyce lying on the grass. On cross-examination he insisted that despite the sun he could see the road straight ahead when he went over into the left lane.
An important defense witness was State Trooper Sliker, who arrived at the scene shortly after Joyce's body had been removed. He said he had spoken to Linette Lore at her home on the evening of the accident. When he was asked what Linette had told him, counsel for plaintiff entered an immediate objection because no foundation had been laid for impeaching her testimony. The objection was overruled and Sliker testified that Linette told him the girls had been boxing alongside her. The last time he saw the girls was when he said he had incorporated Linette's remarks in his accident report. Defendant's counsel had seen the report. In a question which obviously pointed in the direction of testimony he wanted to elicit, he asked the trooper whether reference to the report would refresh his recollection as to what Linette had told him about Joyce's actions. When Sliker said it would and counsel directed him to consult his report, plaintiff's attorney again objected because no foundation had been laid for contradicting Linette. The trial judge permitted the trooper to refresh his memory. After doing so, Sliker testified that Linette had told him, in the presence of her mother, that Joyce had been "walking backwards" just before the ...