Conford, Collester and Labrecque. The opinion of the court was delivered by Conford, S.j.a.d.
[99 NJSuper Page 567] Defendants St. John's Cleaners and Shirt Launderers, Inc. (St. John's) and Joseph Dingle, its employee, appeal from a judgment entered against them on a jury verdict of $6,000 in favor of plaintiff for personal injuries. The appeal is based solely on the contention that the trial court erred in striking the defense of contributory
negligence on motion at the end of plaintiff's case. That action was taken on the ground that the proofs did not permit a jury finding of proximate causal relationship between plaintiff's alleged contributory negligence and the injuries she sustained at or about the time of the collision between St. John's vehicle, driven by Dingle, in which she was riding as a passenger, and the automobile driven by the defendant Winger. The jury by its verdict absolved Winger of responsibility.
St. John's vehicle is a laundry delivery truck, equipped with only one seat for the driver. The driver's seat is on one level; below that level there is a space on a lower level, referred to in the testimony as "the well," between the door (sliding) and the driver's seat-level. Plaintiff was employed in a shop where Dingle had occasion to make a delivery. At her request, Dingle allowed plaintiff to stand in the cab of the truck so as to transport her along his route part way to her home. It is not clear from the proofs whether, prior to the accident, plaintiff was standing on the driver's level or in the well. She testified she was "holding on to the dashboard and there was like a, piece of pipe or something, I was holding on to that." The proofs were contradictory as to whether she had ever been so transported previously in this vehicle.
Dingle, called as plaintiff's witness, testified that as he travelled north on Palisade Avenue in Jersey City at 20 miles per hour the Winger car, coming toward him from the opposite direction, suddenly turned left in front of him to enter a cross street. Dingle swerved to the right to avoid the other car and applied his brakes "hard" at the same time. As he did so plaintiff fell over toward him and he "grabbed her." He saw blood on her head. The front ends of the vehicles collided, but the evidence indicated the damage to both vehicles was slight. There is no evidence in this record whether Dingle or the two occupants of the Winger vehicle were injured.
Plaintiff was unable clearly to relate the time of occurrence of her injuries to the moment of impact between the vehicles.
She could not remember the impact itself. She testified she hit her head when she "fell into that well." She also sustained injuries to her neck, side and chest.
Defendants relied at the trial, in part, on N.J.S.A. 39:4-69 for their contention of contributory negligence by plaintiff. That statute provides:
"No person shall ride on, and no operator shall knowingly allow a person to ride on a street car or vehicle, or on a portion thereof not designed or intended for the conveyance of passengers. This section shall not apply to an employee engaged in the necessary discharge of a duty."
The source enactment of this statute tends to indicate that it is intended to apply only to public conveyances. See L. 1928, c. 281, art. XI, which article is entitled, "Street Cars." Nevertheless, we are clear, and the trial judge in the course of his ruling here under appeal in effect conceded, that a jury could properly have found that plaintiff's voluntary positioning of herself in the well of this truck in the manner indicated by the proofs constituted contributory negligence in that she thereby exposed herself unreasonably to a greater than ordinary hazard of injury in the course of the journey of the vehicle on a city street.
The essence of the decision of the trial court in granting the motion to strike the defense of contributory negligence was that there was no proof of any proximate causal relation between plaintiff's conduct and the accident, and only speculative evidence to permit the jury to apportion "the amount of her injuries" as between that to which her asserted negligence contributed and that to which it did not. Thus, implicitly, the burden of proving apportionment of the injuries in relation to causal origin was assigned to defendant rather than plaintiff, presumably because defendant under our law bears the general burden ...