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Finderne Engine Co. v. Morgan Trucking Co.

Decided: January 3, 1968.

FINDERNE ENGINE CO., PLAINTIFF-APPELLANT,
v.
MORGAN TRUCKING CO., ET AL., DEFENDANTS-RESPONDENTS. ANDREW KWIATEK, PLAINTIFF-APPELLANT, V. MORGAN TRUCKING CO., ET AL., DEFENDANTS-RESPONDENTS. ALFRED R. KLINE, PLAINTIFF-RESPONDENT, V. MORGAN TRUCKING CO., ET AL., DEFENDANTS-RESPONDENTS, AND ANDREW KWIATEK, DEFENDANT-APPELLANT



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

Conford

Plaintiff fire engine company and plaintiff Kwiatek, driver of its fire engine en route to a fire call, sued defendant trucking company and the operator of its tractor-trailer for property damages and personal injuries sustained in an intersection collision between the vehicles. The driver of a third vehicle, standing at the intersection at the time, who was injured when the truck struck his vehicle after colliding with the fire engine, sued the owners and operators of the fire engine and truck. The cases were tried together; the driver of the third vehicle was awarded a jury verdict against all defendants in his action, but plaintiffs in the instant action sustained a "no cause of action." In other words, the jury evidently found the drivers of both the fire engine and the tractor-trailer to have been negligent.

In plaintiffs' appeal the principal question raised pertains to alleged errors in the charge to the jury and failure of the trial court to charge certain of plaintiffs' requests.

A brief sketch of the evidence is necessary. The accident occurred when the fire engine was proceeding easterly on Route 28 through a red light at the intersection with Chimney Rock Road in Bridgewater Township. The truck was proceeding southerly on Chimney Rock Road and went into the intersection on a green light. The point of contact was the approximate center of the intersection. There was a line of cars which had stopped on Route 28, facing easterly and waiting for the traffic light to change from red to green. The fire engine went past them in the westbound lane but was veering to the eastbound lane when it entered the intersection. It was sounding its siren and

flashing its lights, but the driver of the truck testified he did not hear the siren, apparently because his cab windows were closed and his tractor engine was noisy.

Kwiatek, the fire engine operator, testified that when he was 275 feet from the corner he observed a Chevrolet coming south on Chimney Rock Road, followed at a 30-foot distance by the truck, and that then the Chevrolet pulled over to the curb and stopped, while the truck slowed down. He got ready to depress his brake pedal when he was 75 to 100 feet from the intersection, but thinking the truck would stop at the intersection he let his vehicle roll through, taking a "good look" to his right to make sure no traffic was coming from that direction. He did not look back to his left until his vehicle was ten feet into the intersection, then saw the truck "three seconds away * * * knew we were going to hit." The truck was then "well into the intersection." Kwiatek testified he was going 20 miles per hour, as was the truck. There was other testimony that the fire engine was going somewhat faster. Kwiatek admitted he lacked peripheral vision in his left eye.

The driver of the truck testified that the Chevrolet ahead of him went through the intersection (there was other testimony to the same effect). He made his first observation for cross-traffic when about 200 feet from the intersection but did not see the fire engine until he entered it, at which time that vehicle was 75 feet from the intersection.

I

The trial judge charged the jury the text of N.J.S.A. 39:4-91, which reads as follows:

"The driver of a vehicle upon a highway shall yield the right of way to any authorized emergency vehicle when it is operated on official business, or in the exercise of the driver's profession or calling, in response to an emergency call or in the pursuit of an actual or suspected violator of the law and when an audible signal by bell, siren, exhaust whistle or other means is sounded from the authorized emergency vehicle and when the authorized emergency vehicle, except

a police vehicle, is equipped with at least one lighted lamp displaying a red light visible under normal atmospheric conditions from a distance of at least five ...


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