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Talocci v. Strelecki

Decided: January 30, 1967.


Conford, Foley and Leonard. The opinion of the court was delivered by Leonard, J.A.D.


Appellant appeals from an order of the Director of Motor Vehicles suspending his driver's license for one year.

The suspension stemmed from a fatal accident which occurred on July 27, 1965 at or about 3:30 P.M. on Route 35, Wall Township. At the time appellant was driving his delivery truck in a southerly direction, when it went across the center line and into a lane of oncoming traffic, stalled, and was struck by an auto operated by Phillip Tucci, in which his wife Ida Tucci, the deceased, was a passenger.

As a consequence of that collision the Director notified appellant that she proposed to revoke his driver's license because of the alleged violation of N.J.S. 39:4-97 (careless driving), 39:4-82 (failure to drive on the right-hand side of the road where possible), and 39:4-84 (failure to give an oncoming driver at least one-half of the road where possible). Appellant requested a hearing, which was held on March 8, 1966 before a senior hearing officer of the Motor Vehicle Department. At that hearing police officer Robert Brice, Phillip Tucci, John R. Graves and appellant were called as witnesses.

Appellant testified to the following: He was operating his truck as aforesaid, and since it was raining very heavily his lights, windshield wipers and defroster were in operation. Immediately prior to the incident he had proceeded at about 20 miles per hour up an incline formed by a railroad overpass and was coming down at or about 25 to 27 miles per hour. When he had just crossed the bridge of the overpass he first noticed another car, driven by an unknown woman,

pass him on the right, and then that car immediately cut him off. He reacted by applying his brakes in order to avoid striking that car or forcing it off the road. As a result his truck slowed, skidded south and then east across the highway where it stalled for about five seconds before being struck by the Tucci automobile.

Officer Brice testified that he arrived at the scene about three minutes after the accident. He drew a diagram of the scene and described the position of the two automobiles as he found them. He placed the point of impact to be east of the center line of the road, i.e., in the northbound lane. The officer further testified that appellant gave him a statement of the accident which was substantially the same as appellant's previously noted testimony. The officer added that under normal conditions the speed limit on the roadway at the point of the accident was 50 miles per hour. On cross-examination he conceded that he had "no proof" of anything that appellant did in the operation of his motor vehicle which in his opinion "indicated careless driving."

John R. Graves, a co-employee of appellant, testified that at the time involved he was operating his delivery truck on Route 35, in a southerly direction and was about 100 feet in front of appellant. He stated that when the two trucks came over the overpass he noted in his mirror that appellant was directly behind him but when they had come down a little further, he looked again, and he noticed that another car which was very close to appellant had come between them. At that time he saw appellant's truck skid or spin across the highway and stop. However, he did not see the impact.

Phillip Tucci testified that he was proceeding north at about 25 to 30 miles per hour when "all of a sudden" he saw a truck in front of him; he impulsively stepped on his brake; his auto slowed down considerably but the front of his car skidded into and struck the right-hand side of the cab of the truck. He was unable to recall whether the truck was moving at the time of impact.

Apparently the woman driver continued on and no one discovered who she was.

The hearing officer, citing the heavy rain and appellant's familiarity with this particular highway, concluded that appellant "was traveling too fast for conditions regardless of the presence of an unidentified vehicle." He then noted that if appellant had driven his truck with requisite care and at a safe speed, "he would have been able to control his vehicle regardless of any unusual circumstances ...

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