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Elliott v. Ditursi

Decided: July 19, 1971.

ROBERT C. ELLIOTT, AN INFANT BY HIS GUARDIAN AD LITEM, RUTH I. ELLIOTT, AND RUTH I. ELLIOTT, INDIVIDUALLY, PLAINTIFFS-APPELLANTS,
v.
DOMINIC DITURSI, ALICE DITURSI, AND WINDSOR WAX COMPANY, INC., DEFENDANTS, AND PETER GALLAGHER AND HERTZ CORPORATION, DEFENDANTS-RESPONDENTS



Lewis, Matthews and Mintz. The opinion of the court was delivered by Matthews, J.A.D.

Matthews

The issue raised in this appeal is whether the granting of the motion by defendants Peter Gallagher (Gallagher) and Hertz Corporation (Hertz) for judgment n.o.v. constituted reversible error.

The facts are uncomplicated. Infant plaintiff, eight years of age, was visiting his grandmother who lived on the east side of Newkirk Avenue, North Bergen, Hudson County. Newkirk Avenue is a narrow thoroughfare on which parking on the east side is prohibited. A truck operated by Gallagher, owned by Hertz and leased to defendant Windsor Wax Company, Inc. (Windsor), was parked on the east side of Newkirk Avenue some 66 feet from its intersection with 61st Street. The truck, according to the testimony of

an investigating police officer, was parked half on the sidewalk and half on the street (slanted) in a "no parking" zone.

At about 1 P.M. on the date in question, infant plaintiff finished his lunch and decided that he would go to see some puppies at the house across the street from his grandmother's. He testified that he left via the back door of the house. He then walked down the alley that was between his grandmother's house and the house next door. When he reached the street, there was a large Hertz rental truck parked to his left. The rear of the truck was nearest to him. In attempting to look for oncoming traffic, he extended his right foot about one to one and one-half feet from in back of the truck into the street. About "one second" later, a vehicle operated by defendant Dominic Ditursi (Dominic), owned by Alice Ditursi (Alice), ran over his extended foot. The child never saw the oncoming vehicle, nor did Dominic see him.

The trial judge dismissed the complaint against Windsor, and the jury brought in a verdict of no cause of action as to the Ditursis, and a verdict in favor of plaintiffs in the amounts of $2,500 and $119.50, respectively, against Gallagher and Hertz. Gallagher and Hertz thereafter moved for judgment n.o.v. which was granted.

Defendants Gallagher and Hertz argue that it was immaterial whether their vehicle was legally or illegally parked on the street since it was not an operating efficient or proximate cause of the accident. They rely heavily on Powers v. Standard Oil Co. , 98 N.J.L. 730 (Sup. Ct. 1923), aff'd 98 N.J.L. 893 (E. & A. 1923), as did the trial judge in ruling on the motion for judgment n.o.v.

In Powers defendant parked its truck on the wrong side of the road and plaintiff-decedent ran out into the street from behind it and was killed. Parking was permitted and the only illegality of the defendant was that his truck was facing the wrong way. The former Supreme Court found that even if the position of the truck had been reversed and it was legally parked, the same difficulty of an obstructed vision would have been presented. Hence, we read Powers to hold that the accident

would have occurred regardless of which way defendant's truck was facing. We believe that the trial judge's reliance on Powers , under the circumstances presented here, was misplaced.

In Beyer v. White , 22 N.J. Super. 137, 142-143 (App. Div. 1952), this court, in referring to Powers , observed that the former Supreme Court in its opinion did not hold that an immobile truck could never be capable of perpetrating harm or damage. In Beyer defendant had parked his tractor-trailer along the side of a highway on a dark night and did not set out flares as required by N.J.S.A. 39:3-64. Plaintiff-decedent was unable to see the parked truck and struck it from the rear. This court found that defendant's failure to obey the law raised a jury question as to his negligence.

In Lutz v. Westwood Transportation Co. , 31 N.J. Super. 285 (App. Div. 1954), plaintiff was a passenger on a bus which had stopped at a corner to pick up passengers. The evidence showed the bus came to a halt two feet from the curb in violation of N.J.S.A. 39:4-135, which requires such vehicles to stop within six inches of the curb. The bus on which plaintiff was riding was thereafter struck by another bus on the right rear corner while parked. This court affirmed the dismissal of the claim of negligence against the bus in which plaintiff was riding. Relying on Powers , the court treated the parked bus as a mere existing condition and ...


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