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Ettin v. Ava Truck Leasing Inc.

Decided: May 3, 1968.

DONALD ETTIN, PLAINTIFF-RESPONDENT AND CROSS-APPELLANT,
v.
AVA TRUCK LEASING, INC., DEFENDANT-APPELLANT AND CROSS-RESPONDENT. DONALD ETTIN, PLAINTIFF-RESPONDENT AND CROSS-APPELLANT, V. SWEETS CO. OF AMERICA, INC., DEFENDANT-RESPONDENT AND CROSS-APPELLANT



Sullivan, Foley and Leonard. The opinion of the court was delivered by Leonard, J.A.D. Sullivan, S.j.a.d. (concurring). Foley, J.A.D. (concurring).

Leonard

Involved herein are two separate personal injury motor vehicle accident cases which were instituted by plaintiff against separate defendants and consolidated for trial.

On April 4, 1961, at or about 3:30 P.M., plaintiff, a salesman for Feldman Food Products, was operating a truck leased from defendant Ava Truck Leasing, Inc. (Ava) in a southerly direction on Park Avenue in Hoboken when he collided with a parked tractor-trailer from which merchandise was being delivered to the plant of defendant Sweets Co. of America, Inc. (Sweets).

Plaintiff testified that immediately before the accident he had traversed the crest of the Park Avenue Bridge. As he was descending the bridge at or about 20 to 25 miles per hour, he allegedly noticed the tractor-trailer parked across the sidewalk fronting Sweets' warehouse. The tractor-trailer was blocking both lanes of southbound traffic on Park Avenue.

Plaintiff further testified that he attempted to apply his foot brake, but that the brake went down "flat against board." Purportedly, he then started pumping his brake, but "nothing resulted from that." Plaintiff stated that he attempted to shift into a lower gear, but was unable to do so. He asserted that he tried to apply his hand emergency brake, but could not slow his truck by such a procedure.

Plaintiff related that he had noticed that several cars were stopped behind the parked tractor-trailer. These cars, according to plaintiff, could not go around the tractor-trailer because of heavy northbound traffic on Park Avenue. Plaintiff testified that he could not move his truck into the left lane because such a maneuver would have produced a head-on collision with an automobile in the northbound traffic. Had plaintiff proceeded straight, he allegedly would have hit the rear of one of the cars stopped on account of the trailer. This, according to plaintiff, would have set up a "chain reaction of several cars." Therefore, plaintiff chose to pull to the right into the slow lane and crash into the center of the side of the trailer.

Originally, plaintiff instituted an action against Ava, Ventre Trucking Company (Ventre), Pan Atlantic Steamship Corporation (Pan Atlantic) and Kelly Mitchell (Mitchell). Ventre and Pan Atlantic allegedly had proprietary interests in the tractor-trailer. Mitchell was the operator of the parked vehicle at the time of the accident.

Plaintiff dismissed his action against Pan Atlantic. The jury returned a verdict of $9000 in favor of plaintiff against Ava and verdicts of no cause of action in favor of defendants Ventre and Mitchell. However, the trial court granted Ava a new trial, a decision which we affirmed. Plaintiff has never appealed from the judgments in favor of defendants Ventre and Mitchell.

Plaintiff also brought an independent action against Sweets, alleging that Sweets "directed and participated in the improper and illegal [negligent] parking" of the tractor-trailer

at its plant, and that Sweets, in so doing, created and maintained a public nuisance.

The suit against Sweets was consolidated with the retrial of plaintiff's action against Ava. At the close of the trial of the consolidated actions, the jury returned a verdict for $17,000 in favor of plaintiff and against both Ava and Sweets. Both defendants moved before the trial court for judgments n.o.v. or, in the alternative, for a new trial. Ava at this time also moved to amend its answer to assert a cross-claim for contribution against Sweets. It had not previously asserted such a claim.

The trial judge granted Sweets' motion for judgment n.o.v. on the ground of collateral estoppel but denied its motions for a new trial and judgment n.o.v. to the extent that they were based on the alleged failure of plaintiff to make out a prima facie case of negligence against Sweets and on purported trial errors. All of Ava's motions were denied.

Ava appeals from the judgment of the trial court against it, and from the denial of its motions for a new trial, and from the denial of its motion for permission to amend its answer to assert a cross-claim against Sweets. Ava also appeals from the judgment n.o.v. entered in favor of Sweets and against plaintiff.

Sweets, "in order to protect its rights and interests" in the event of a reversal of its judgment n.o.v., cross-appeals from the judgment rendered against it based upon the jury verdict for plaintiff and from the partial denial of its motions for judgment n.o.v. and for a new trial.

Plaintiff, "for protective purposes", cross-appeals from the judgment n.o.v. ...


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