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Mattero v. Silverman

Decided: June 12, 1963.


Conford, Gaulkin and Kilkenny. The opinion of the court was delivered by Gaulkin, J.A.D.


After our previous opinion in this case, reported in 71 N.J. Super. 1 (App. Div. 1961), certification denied 36 N.J. 305 (1962), the case was tried again. After plaintiff rested, the trial court granted defendants' motion for dismissal, on the grounds that plaintiff had not established a prima facie case of defendants' negligence and because the evidence showed plaintiff's contributory negligence. Plaintiff appeals.

The broad outlines of the happening of the accident are sufficiently stated in 71 N.J. Super. , at pp. 5-6.

Plaintiff argues that the evidence of the weather conditions, the huge bulk of the tractor-trailer, its course and position on the highway, and its insufficient lighting was enough to take the issue of defendants' negligence to the jury. We agree.

Taking the evidence and the inferences therefrom in the light most favorable to plaintiff, as we must, the pertinent

circumstances here are that it was not only night, but raining and misty and the visibility was poor; the tractor-trailer was of great bulk, being 40 to 45 feet long and 11 feet high; and defendants drove it diagonally (generally southeasterly) across the three southbound lanes of Route 1, from the diner at the northwesterly corner of Route 1 and Lafayette Street toward the break in the traffic island at the intersection of Lafayette Street; the tractor entered the break in the traffic island, but the trailer extended northwesterly at an angle over all of the southbound lane nearest the traffic island (hereafter the inside lane) and across half the center southbound lane. The side of the trailer and its left rear wheels were in the inside lane and the back of the trailer in the center lane, so that the right rear wheels were 7 or 8 feet in the center lane. The side of the trailer, which thus blocked the inside lane, had no reflectors or lights. Whether there were enough lights elsewhere on the trailer to warn oncoming traffic that the side of the trailer blocked the inside lane was the issue most sharply disputed at the trial. It was defendants' duty to have "proper lights of sufficient brilliance and volume and properly located on the apparatus as notice or warning * * * to one lawfully using the highway." Sokiera v. H.A. Jaeger, Inc. , 12 N.J. Misc. 17, 169 A. 347 (Sup. Ct. 1933), affirmed o.b. 112 N.J.L. 500 (E. & A. 1934).

Plaintiff was driving a panel truck and following another car, close in front of him, in the inside lane. To his right and a short distance behind, in the center lane, one Hochdorf, a soldier returning to Camp Dix, was driving an automobile in which one Sindlinger was a passenger.

Plaintiff testified that the car in front of him suddenly pulled to the right; "when the car pulled out all I saw was a black object. I went for my brakes * * *"; he saw no lights on this black object.

Hochdorf testified that the weather was "bad, very bad * * * misty * * * it was miserable out," and the visibility was "poor, very poor." He said he saw plaintiff's car in the inside lane, "a little ahead of me on the left"; there

was another car ahead of plaintiff, which suddenly "swerved in front of me and I cursed at him * * * he cut directly to the right all the way over to the third lane * * * and he disappeared * * *." He then testified as follows (emphasis ours):

"QUESTION: Now, when that car went to the right and kept on going did you see the truck and tractor that was stopped on the road? ANSWER: Yes. I was going about 35, around there, and I seen him cut over and I didn't know why because I couldn't see the truck at all and then I seen him and I swerved. Well, I just missed him. And I seen him hit and I curved as I was turning.

QUESTION: You saw who hit? ANSWER: The panel truck.

QUESTION: I see. Now, as you pulled to your right after the car in front of the panel truck went to the right, what did the panel truck do? ANSWER: Well, he went into the truck while I was swerving over.

QUESTION: At the same time you were turning? ANSWER: Well, just about the same time, I guess it was.

QUESTION: It says here in the statement 'I pulled to the right and at the same time the truck to my left ran into the side of the truck across the two lanes.' That's true, isn't it? ANSWER: Yes.

QUESTION: And did you notice any lights at all on the side of the tractor-trailer before the accident? ...

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