146 A. 191 | N.J. | 1929
A judgment was entered in the Essex County Circuit Court upon a jury verdict in favor of the plaintiff below, against the defendants below, for personal injuries caused by an automobile truck owned by the defendant Arrow Sanitary Laundry Company, and, until a few minutes before the accident, operated by the defendant Fowler, an employe of the laundry company, in and about its business. The laundry truck, without driver or occupant, traveled along Bigelow street, Newark, left its proper (right) side of the highway, mounted the opposite curb and there crushed the plaintiff, standing partly on the curb and partly in the street, against a motor truck which he was preparing to enter. Fowler testified that Bigelow street had quite a steep grade; that he didn't know any hill on his route as steep as that one; that he in the course of his employment had parked his car against the right hand curb of Bigelow street; that in parking he pulled toward the curb on an angle, the right front wheel turned into the curb, the rear of the car two or three feet from the curb; that he "pulled up" the brake and shut off the motor; that he then entered a customer's house and was there about fifteen minutes; that when he came out the car was down at the scene of the accident, "it ran down the hill into the other truck" — a block distant, and the plaintiff had been taken away; that the brake was "O.K.;" that he had from time to time, when in that neighborhood, seen a number of children but did not see any there that day. Fowler also testified that after the accident he and Mr. Sommer (an officer of the laundry company) tested the brake bands and did not put on new ones as the old ones were all right; which testimony was at variance with the witness' earlier signed statement, put in evidence, wherein Fowler asserted that while the bands were found all right, new ones were nevertheless installed. *610 Fowler further testified that upon his arrival at the scene of the accident the brake of his truck was in neutral; though there was no clear testimony that anything had been done to the brakes since he last left them. Also there was evidence by one Bernstein who, with two others, pushed the laundry truck back from the injured plaintiff, that while he thinks — without being certain — that the brakes were on there was no trouble pushing the truck back. Defendants, in their grounds of appeal, allege three errors but on their argument and brief waive one of them and contend that the trial court erred (1) in denying the motion for a direction of verdict in favor of the defendants, and (2) in refusing to charge as requested in the language hereinafter recited.
At the close of plaintiff's case there was no evidence as to the manner in which the car had been parked, but the incidents of the accident were in proof, as were the damages caused, the ownership of the truck, the identity of the driver employed to operate the same and the fact that he had been in physical control only a few minutes earlier.
True, automobiles are not generally held to be dangerous instrumentalities per se; but they have dangerous potentialities and, when not handled carefully by competent persons, become, under certain conditions, highly dangerous instrumentalities and a public menace. Wilson v. Brauer,
It was in evidence as part of plaintiff's case that Fowler had shortly before the accident left the truck on the same street about one hundred and ninety or two hundred feet above the scene of the accident, and on the opposite side from where the accident occurred; that the street had quite a grade; and that while the policeman summoned to the scene was still on the ground, Fowler came running down the hill and wanted to know where his truck was. *611
The unexplained presence upon the public highway of this "runaway" motor truck, without driver or occupant, moving along the highway to the far side thereof, mounting the curb and doing serious physical injury to a person lawfully there, raises aprima facie presumption of negligence on the part of the owner and on the part of the owner's employe in whose charge the car was. The defendants apparently accepted that as the legal status at the close of plaintiff's case; at any rate they proceeded to their defense without the formality of a motion for nonsuit.
The question now is whether, at the close of the entire case the evidence adduced was of such character and weight as to overcome all presumption and proofs of defendants' negligence and to create such a situation as that the court, as a matter of law, was obliged to direct a verdict in favor of the defendants. The general rule was stated in Spanko v. Spitalnick,
In the instant case the questions to be resolved included not only whether the safeguarding of the car, as testified to by Fowler, met that degree of care and prudence which the law requires to be exercised under such circumstances, but also whether, in the light of other evidence, the car was actually so safeguarded and whether the brakes, even if set, were in proper condition to hold the car on so steep a grade. Hence, the motion for the direction of a verdict was properly denied.
Defendants' remaining ground of appeal is that the court refused to charge the following request:
"Your verdict should be for the defendants if you find from the evidence that the defendant Fowler left his truck with the *613 engine turned off, the brakes securely set and the wheels turned toward the curb, with the right front wheel against the curb."
Without proceeding further into a discussion of the legal concept contained within the request, it is sufficient to say that the request omits the recital of salient facts, and that the trial judge is not required to charge what the law would be if certain isolated facts constituted the entire case. ConsolidatedTraction Co. v. Behr,
The judgment will be affirmed, with costs.
For affirmance — THE CHANCELLOR, CHIEF JUSTICE, TRENCHARD, PARKER, KALISCH, CAMPBELL, LLOYD, CASE, VAN BUSKIRK, McGLENNON, KAYS, HETFIELD, DEAR, JJ. 13.
For reversal — None.