McCray v. Chrucky, A--779

• Decision Date: 02 March 1961
• Docket Number: No. A--779,A--779
• Citation: 168 A.2d 660,66 N.J.Super. 124
• Parties: Margaret McCRAY, Plaintiff-Respondent, v. Leonid CHRUCKY, Defendant, and John J. Ciampi, Defendant-Appellant. Leonid CHRUCKY, Plaintiff-Respondent, v. John J. CIAMPI, Defendant-Appellant. . Appellate Division
• Court: New Jersey Superior Court — Appellate Division

Page 124

66 N.J.Super. 124

168 A.2d 660

Margaret McCRAY, Plaintiff-Respondent, v. Leonid CHRUCKY, Defendant, and John J. Ciampi, Defendant-Appellant.

Leonid CHRUCKY, Plaintiff-Respondent, v. John J. CIAMPI, Defendant-Appellant.

No. A--779.

Superior Court of New Jersey.

Appellate Division.

Submitted Feb. 6, 1961.

Decided March 2, 1961.

Samuel O. Offen, Newark, for appellant (Howard A. Goldberger, Newark, of counsel).

Pearce R. Franklin, Newark, for respondent McCray.

Oppenheim & Oppenheim, Newark, for respondent Leonid Chrucky (Henry H. Rubenson, Newark, of counsel).

Before Judges GOLDMANN, FOLEY and HALPERN.

The opinion of the court was delivered by

FOLEY, J.A.D.

This appeal is taken by Ciampi from judgments entered against him on jury verdicts returned in the Law Division in favor of McCray and Chrucky.

The actions arose out of an automobile accident which occurred at the light-controlled intersection of High and West Kinney Streets in Newark, New Jersey, on December 20, 1957 at about 4:00 p.m.

Miss McCray was a passenger in a taxicab owned and operated by Ciampi. According to her, Ciampi had been proceeding south on High Street and, upon reaching West Kinney Street, brought his cab to a stop preparatory to making a left turn. The light was green for traffic going north and south. The driver 'started up' and had gotten half way through his turn when the cab was struck by the Chrucky car, which was being driven northerly on High Street. This car, said Miss McCray, was almost a block away while Ciampi was still standing, and as he moved ahead was 'coming pretty fast.'

Ciampi's version of the happening was virtually the same. He added that he had come to a stop to permit several northbound vehicles to pass, and then turned slowly with his directional signals flashing. He said that at this time the oncoming vehicle was still 150 to 200 feet distant, and he testified that he had completed the turn when the cab was struck.

Chrucky, obviously under a language handicap, testified that as he was passing through the intersection on a green light he suddenly stopped, having seen the taxicab 'maybe half car' distant. The collision followed immediately.

Charles A. Peters, a bus driver, testified that he was proceeding easterly and brought his bus to a stop at the southwesterly corner of the intersection to pick up three passengers; the light then was green for eastbound traffic. While the bus was standing this light turned red, after which the taxicab proceeding east on West Kinney Street 'shot' by the left side of the standing bus, entered the intersection on the red light, and collided with the northbound Chrucky car.

Dominic D. Franchino testified that while he was seated in a taxicab which was facing west at the northeasterly corner, awaiting the turn of the light from red to green for westbound traffic, he observed the Ciampi taxicab proceeding south on High Street stop at the intersection, prior to making a left turn. After three or four northbound cars passed, the Ciampi vehicle started to turn. He then saw Chrucdky's car travelling northerly skid into the rear of the taxicab.

Holding Ciampi to be solely responsible for the accident, the jury returned a verdict of $17,000 against him on the McCray action, one of $1,500 in Chrucky's favor, and no cause of action on Ciampi's suit against Chrucky. The grounds of appeal urged by Ciampi are: (1) errors in the court's charge requiring reversal and error in refusing to charge certain requests of defendant; (2) the trial court erred in refusing to strike the testimony of Dr. Josephus C. Carr, Miss McCray's treating physician; (3) Miss McCray failed to sustain the burden of proof of a causal relationship between the accident and her claimed injuries; (4) it was error to permit the jury to view a verified statement filed by McCray in a prior county district court action which, unknown to counsel, contained an Ad damnum clause; (5) Chrucky was guilty of contributory negligence as a matter of law; (6) remarks made in summation by Chrucky's attorney were improper and prejudicial. We will treat with these grounds Seriatim.

1.

The trial court charged the jury that in the event of recovery by plaintiff, McCray would be entitled to damages for any 'aggravation, acceleration or exacerbation' of a pre-existing condition, disease or injury from which she may have been suffering. It is beyond dispute that since a party is entitled to recover damages for all of the adverse effects upon his well being which naturally flow from the negligence of another, such damages include those for the aggravation, acceleration or exacerbation of a pre-existing injury or disease. Appellant does not question this, but urges that in the particular circumstances of this case plaintiff was debarred from such recovery, because neither in the pleadings, interrogatory answers, or pretrial order, nor at the trial, did she posit her claim on aggravation, but, on the contrary, at all times took the position that her injuries and the effects thereof were the direct result of the accident upon which the action is based.

We are not dealing here with a situation where defendant claims surprise by reason of plaintiff's having imported to the trial proofs of an issue not previously defined by the pleadings or pretrial order, or one which defendant had no reason to believe would be relied upon. See Wadell v. Public Service Coordinated Transport, 3 N.J.Super. 132, 65 A.2d 766 (App.Div.1949). Here the issue of aggravation was raised not by plaintiff but by defendant. He was quite within his rights in taking the somewhat inconsistent position that the injuries were not the result of the 1957 accident, and that this accident merely caused an aggravation of the pre-existing injuries suffered in a 1955 accident, or alternatively that the so-called 'injuries' were merely manifestations of a degenerative process, non-traumatic in origin. Had defendant been able to persuade the jury that no injuries whatever were suffered in the 1957 accident, or that plaintiff's physical abnormalities were unrelated to any traumatic injury, he would have been entitled to a verdict of no cause of action. But if, as may have been the case, the jury concluded that plaintiff did suffer injuries in the 1957 accident which aggravated a condition or conditions resulting either from earlier injuries or pre-existing disease, defendant was not entitled to be relieved of responsibility for such aggravating effects.

Nor are we presented with a case in which plaintiff, having framed her action upon the theory that her injuries were the direct result of the accident and offered proofs on that theory which were repugnant to the theory of aggravation of an existing infirmity, sought at the trial to shift grounds and thus avail herself of the latter approach. In such a case defendant, having relied upon an assumption that plaintiff's evidence would be limited to her averments, is entitled to have plaintiff's proofs confined to her allegations. See Jardine Estates v. Koppel, 24 N.J. 536, 133 A.2d 1 (1957).

When this case was presented to the jury the essential questions to be determined were: was defendant liable and, if so, what damages did plaintiff sustain. In its endeavor to answer these questions, the jury was obliged to examine all of the evidence and was free to accept what it felt to be credible, from whichever side it came and, having done so, to then fashion its verdict in accordance with the applicable law as defined by the judge. Appellant cites us no authority, and we know of none, which would permit a defendant to offer, in diminution of damages, proof that plaintiff's disability was not wholly due to the event with which defendant was sought to be charged, but was in part attributable to a prior happening with which defendant was not chargeable, and upon this basis deprive plaintiff of recovery of damages for such part of the disability complex as was chargeable to defendant's negligence. We, therefore, find no error in the portions of the charge which are criticized, or in the refusal of the court to charge requests of defendant designed to implement the aforestated theory of nonliability.

2.

We find it unnecessary to discuss the testimony of Dr. Carr at length. Suffice, it to say, that the reproduction of it occupies almost 60 pages of appendix, that the witness was subjected to searching cross-examination, and that in some respects his credibility was tellingly impugned thereby. After the doctor had been excused, defendant moved to strike his entire testimony from the record, essentially upon the ground that the reliability of the witness was belied by his notes, which he used in the course of his testimony to refresh his recollection. The motion was denied. Defendant concedes that this application was addressed to the discretion of the court but urges that the denial of it constituted an abuse of discretion. Again we are cited no authority in substantiation of defendant's contention. We know of no case which sustains the right of a trial judge to carve from the record the entire testimony of a medical witness simply because the court finds it to be incredible in certain particulars. Questions of credibility are peculiarly within the jury domain. While the...