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Nesmith v. Walsh Trucking Co.

Decided: February 27, 1989.

ALNETHA AND QUEENIE NESMITH, PLAINTIFFS-APPELLANTS,
v.
WALSH TRUCKING COMPANY AND DONALD P. BRADEN, DEFENDANTS-RESPONDENTS



On appeal from Superior Court of New Jersey, Law Division, Camden County.

Shebell, Gruccio and Landau. Shebell, J.A.D., dissenting.

Per Curiam

[247 NJSuper Page 362] Plaintiffs Alnetha and Queenie Nesmith appeal a judgment of no cause for action in favor of defendants Walsh Trucking Company and Donald P. Braden. Plaintiffs also appeal from the trial judge's order denying them a new trial. Plaintiffs sued for personal injuries sustained by Alnetha Nesmith who,

while working as a longshoreman, was struck by a tractor-trailer owned and operated by Braden while employed by Walsh Trucking.

These are the facts of the accident: Nesmith worked at the Broadway Marine Terminal in Camden, New Jersey, as a ship foreman, which required him to periodically walk back and forth from the ship to the yard where the cargoes were being stored. On December 11, 1984, while on his way back to the ship after completing one of his routine checks, a forklift crossed his path as he walked back toward the river. After waiting, he continued walking when a tractor-trailer struck him from behind, running over his left leg. At that moment, someone in the yard shouted and the truck came to a sudden stop. Braden was later identified as the driver of the tractor-trailer.

Two of Nesmith's coworkers, Raymond Oxner and Jessie Gallman, corroborated these facts. Oxner testified that he and Nesmith were on their way back to the ship when he was called away by one of the workers. He suddenly noticed a truck coming up behind Nesmith and yelled, "Al, Al, watch." However, there was so much noise in the area that the warning went unheard. Oxner said the truck's bumper hit and knocked Nesmith to the ground. At that moment, Gallman jumped off a chisel (forklift), ran toward the truck and banged on its front door. When the truck stopped Nesmith was found underneath the tandem wheels.

Gallman said he was on a forklift when he noticed a large truck hit Nesmith from behind knocking him to the ground. He also stated that the truck backed up over Nesmith's legs after it had come to a complete stop. A deposition from a coworker, Gilbert Henderson, slightly contradicted Nesmith's statements. Henderson said that the tractor-trailer was indeed travelling behind Nesmith but that one of its gas tanks hit Nesmith's leg when it suddenly veered to the right.

Officer Ivan Holmes of the Camden Police Department testified that he had investigated the accident and prepared a report. He said Braden told him at the scene of the accident "that he saw [Nesmith] walking alongside a tow motor but . . . he did not strike the victim." Accordingly, Holmes concluded that a contributing cause of the accident was driver inattention.

In their answers to plaintiffs' interrogatories defendants conceded that there had been contact between the tractor-trailer and Nesmith. However, Braden's version of the accident substantially differed from Nesmith's. Braden said he was driving his tractor-trailer behind a tractor-trailer driven by fellow Walsh employee Paul Bartell. He claimed Bartell's truck came to a sudden stop requiring him to bring his own truck to a stop approximately five feet behind. He then noticed a forklift travelling in the opposite direction. As the forklift approached he started to move the tractor-trailer forward slowly, looked into his right rearview mirror and noticed Nesmith underneath the tandem wheels on the right rear of his tractor. He then brought the tractor-trailer to an immediate stop.

Bartell corroborated this testimony stating that he was travelling in front of Braden and brought his truck to a stop in order to let a forklift pass by. He stated that a few minutes later he noticed a commotion at the pier and walked back to the site of the accident. There, he noticed Nesmith under the right rear tandem wheels of the tractor-trailer. Since he did not see the accident, he could not offer any details to police.

Other trial testimony established that the distance from the front of the tractor-trailer to the mid-point of the rear tandem wheels was approximately 12 1/2 feet. All witnesses agreed that after the tractor-trailer came to a stop, Nesmith's legs were between the rear wheels.

Over the objection of plaintiffs' counsel, defendants presented John Comiskey as an expert witness to render an opinion as to who was in the best position to avoid the accident. Although Comiskey's prior experience is in the field of highway safety,

the trial court concluded that he had sufficient education in traffic safety to qualify as an expert. This conclusion was primarily based on Comiskey's testimony that safety standards relating to highways apply to any situation involving vehicular and pedestrian traffic, including pier facilities. After listening to defense counsel's hypothetical questions, Comiskey concluded that Nesmith was in the best position to avoid the accident since he was "more maneuverable than the truck, and should have been aware of what was happening around him because he is more vulnerable."

Plaintiffs contend that the jury's determination that defendants were not negligent was erroneous. They claim the verdict was the result of either bias or a misunderstanding of the testimony or the law. As such, they claim that the verdict represents a "miscarriage of justice under the law" and seek a new trial.

R. 2:10-1 provides:

In both civil and criminal actions, the issue of whether a jury verdict was against the weight of the evidence shall not be cognizable on appeal unless a motion for a new trial on that ground was made in the trial court. The trial court's ruling on such a motion shall not be reversed unless ...


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