Sachanko v. Gill, 16744.

• Decision Date: 29 January 1968
• Docket Number: No. 16744.,16744.
• Citation: 388 F.2d 859
• Parties: Irene SACHANKO and William Sachanko, Appellants, v. Joan GILL and John R. Gill, Appellees.
• Court: U.S. Court of Appeals — Third Circuit

388 F.2d 859 (1968)

Irene SACHANKO and William Sachanko, Appellants, v. Joan GILL and John R. Gill, Appellees.

No. 16744.

United States Court of Appeals Third Circuit.

Argued December 19, 1967.

Decided January 29, 1968.

Jerome L. Yesko, Yesko & Marcus, Paterson, N. J., (Harvey I. Marcus, Paterson, N. J., on the brief), for appellants.

Joseph F. Faccone, Jr., Williams, Willette & Faccone, East Orange, N. J., for appellees.

Before BIGGS, McLAUGHLIN and VAN DUSEN, Circuit Judges.

OPINION OF THE COURT

PER CURIAM.

In this automobile accident litigation there were two cars involved, that of plaintiff Irene Sachanko, driven by her husband William and defendant John Gill's car, driven by his wife Joan. Mrs. Sachanko was seated in the front seat of her machine and her three children were in the rear. Mrs. Gill's mother-in-law was with her in the front seat and the Gill nine month old daughter was in a car seat between them. Both cars were proceeding in the same direction on Parish Drive, Wayne, New Jersey. There was evidence that the street was wet. It is undisputed that it was stop and go traffic during the critical time, caused by an accident somewhere ahead. Mrs. Sachanko did not see the Gill vehicle prior to the collision. Mr. Sachanko, the driver of his wife's machine, did not testify. Although he was seemingly in California where plaintiffs reside and medical depositions taken in that state were in evidence on behalf of Mrs. Sachanko, there was no deposition offered from Mr. Sachanko.

Mrs. Gill testified that the road was down hill in their direction just prior to the accident and that at the actual time of the collision the road was still a little down grade. She said that when she started up before the accident she was about three feet behind plaintiff's automobile; that the latter like all the other traffic was then moving and stopping; that her car was in first gear (it had a manual shift); she had moved about a length on the down grade, plaintiff's car was moving at the same time. As Mrs. Gill described it "He stopped and I stopped." The Gill machine slid approximately a half length and collided with the rear of plaintiff's car. Mrs. Gill said the impact was light. None of the Gills was injured, including the baby who had not been tied into her seat. Mr. Sachanko, the driver of the plaintiff automobile, and the three children in the rear seat were not hurt. Mrs. Sachanko claimed to have sustained injuries. Mrs. Lang, Mrs. Gill's mother-in-law, a passenger in the front seat of the Gill car, was a witness. She saw the plaintiff automobile just prior to the accident about a car length ahead of them. Asked, "What happened to the vehicle ahead of you?" She answered "They stopped suddenly." She described the contact between the two cars as "a slight bump."

There were no other fact witnesses. There was no motion on behalf of the plaintiffs for a direction of verdict in their favor. There had been a motion to dismiss plaintiffs' suit at the end of their presentation. That had been denied by the court. The defense contention of contributory negligence was withdrawn.

The judge charged the issues on the merits. He said inter alia "The accident was brought about during a collision between two cars, rear end collision. The mere fact that there was an accident and in the course of the accident someone was hurt does not mean standing alone that the plaintiffs are entitled to recover, because the burden is on the plaintiff of proving by a fair preponderance of the evidence that the defendant was negligent; that that negligence was a proximate cause of the accident." After concluding his charge he asked both counsel "Are there any exceptions to the charge?". The defense attorney said "No". The plaintiffs' attorney said "No exceptions your Honor." The jury later requested further instructions on what constitutes...