Ambrose v. Cyphers

• Decision Date: 16 February 1959
• Docket Number: No. A--56,A--56
• Citation: 148 A.2d 465,29 N.J. 138
• Parties: Paul AMBROSE and Isabel Ambrose, Plaintiffs-Appellants, v. Leroy CYPHERS, Defendant-Respondent, and George Donnelly, Defendant.
• Court: New Jersey Supreme Court

Page 138

29 N.J. 138

148 A.2d 465

Paul AMBROSE and Isabel Ambrose, Plaintiffs-Appellants, v. Leroy CYPHERS, Defendant-Respondent, and George Donnelly, Defendant.

No. A--56.

Supreme Court of New Jersey.

Argued Dec. 15, 1958.

Decided Feb. 16, 1959.

John A. Gleeson, Newark, argued the cause for appellants (Fremont D. Donley, Dover, and Mead, Gleeson, Hansen & Pantages, Newark, attorneys; John A. Gleeson, of counsel).

Abraham I. Harkavy, Newark, argued the cause for respondent (Harkavy & Lieb, Newark, attorneys).

The opinion of the court was delivered by

WEINTRAUB, C.J.

Mr. and Mrs. Ambrose recovered judgments for personal injuries (including loss Per quod suffered by the husband) against both defendants. Plaintiffs were passengers in Cyphers' car when Cyphers, facing west, left a parked position at the curb to execute a U-turn and was struck by Donnelly who was proceeding westerly. Donnelly did not defend. His negligence was clear. The actual contest was between plaintiff and Cyphers. On Cyphers' appeal, the Appellate Division reversed, finding error (1) in a supplemental charge with respect to the duty of a driver making a U-turn, and (2) in taking from the jury the question of contributory negligence of Mrs. Ambrose. Ambrose v. Cyphers, 50 N.J.Super. 329, 142 A.2d 239 (1958). We granted plaintiffs' petition for certification. 28 N.J. 33, 144 A.2d 736 (1958).

I

A

The trial judge several times charged negligence in the conventional terms of the failure to exercise the care of a reasonably prudent man under the circumstances and in fact closed his instructions by reading defendant's request to the same effect. However, with specific reference to a U-turn, he charged that if the jury found that Cyphers was making such turn (actually a conceded fact), then 'it was the duty of the defendant Cyphers to exercise great care and to seek an opportune time to make such a left turn or U turn.' Cyphers objected in these words:

'It is not a correct statement of the law. That was the statement about great care. The cases held that the care must be commensurate with the circumstances even if, as I understand the case, a greater degree of care than ordinary care must be used.'

Defendant thus protested against the use of the term 'great care,' although it is not clear (a) whether he meant that the court should have said that 'a greater degree of care than ordinary care' was required, or (b) whether he meant that the court should have charged only that the care required is that 'commensurate with the circumstances,' thus leaving it to the jury to decide whether such care in the circumstances should be greater than ordinary care.

The Appellate Division found no error in the main charge, but did find error in the supplemental instructions, as to which the record reads:

'The Court: Members of the Jury:

'You have sent me a note which reads as follows: 'Is great care or reasonable care a consideration in this matter?'

'Yes, it is. You must remember that they were invited guests in the car of the defendant Cyphers and I said to you that if you find from the evidence that prior to the accident the automobile of the defendant Cyphers was standing in a parked position at the north curb of Central Avenue facing in a westerly direction and it was his intention to start from that position and proceed to make a left U turn to go east on Central Avenue it was the duty of the defendant Cyphers to exercise great care and to seek an opportune time to make such left turn, and that if he failed to exercise such great care then he violated the duty that the law placed upon him with respect to any invited guest, and this constitutes negligence on the part of the defendant Cyphers.'

Cyphers objected to the supplemental charge. The objection, not being particularized, must be assumed to be the same one advanced to the main charge. The Appellate Division found error, not because it was improper to require 'great care,' but rather because the supplemental charge failed to state:

'that there is only one basic standard of care--reasonable care under the circumstances--and that a driver about to make a left-hand turn across oncoming traffic, or a U-turn is undertaking an extraordinary traffic hazard and in doing so is expected by the law, as a reasonably prudent person, to seek an opportune or safe time to do so. It was not fatal, as we have already observed, that the court used the terminology 'great care,' but there was error in that it failed to relate the special degree of precaution required in the particular exigency to the general standard of reasonable care basically applicable to the conduct of the defendant all through the entire episode. 'Reasonable care' was not even mentioned in the supplemental instruction.' (50 N.J.Super., at page 338, 142 A.2d at page 244.)

We observe in passing that the basis for reversal was not the objection advanced by defendant.

Parenthetically, we note that the Appellate Division added that 'Indeed, from the supplementary charge, the jury may well have understood that there was a special duty of great care because the plaintiffs were invited guests, rather than because of the hazards of the left-hand U-turn.' (50 N.J.Super., at page 338, 142 A.2d at page 245.) It is not clear that it would matter if that observation were correct. In any event, we are satisfied the jury must have understood that the reference was to the U-turn. The trial judge doubtless referred to plaintiffs' status because counsel for defendant had contended that plaintiffs were merely licensees but failed to raise a factual question on that issue. Hence the court deemed it advisable to remind the jury that plaintiffs were invitees.

B

The standard of care is the conduct of the reasonable man of ordinary prudence under the circumstances. That care is sometimes called 'reasonable care,' a short-hand expression for the fuller statement, to wit, the care which a reasonable man would exercise. Perhaps some of the linguistic difficulty arises from use of the short-hand expression, for it tends to suggest that 'great care' is necessarily different from 'reasonable care,' whereas in a given set of facts 'reasonable care' may require 'great care.'

The standard of care of the reasonable man necessarily imports varying Amounts of care in relation to the variable element of risk of harm. The concept 'connotes such degree of care as is commensurate with the risk of harm * * *.' Niles v. Phillips Express Co., 118 N.J.L. 455, 459, 193 A. 183, 186 (E. & A.1937). The greater the risk, the greater is the care required--the reasonable man would so behave. We should differentiate this proposition from the much-critized concept of degrees or kinds of negligence, i.e., slight, ordinary, and gross, and the companion concepts of different Standards of care. 2 Harper and James, The Law of Torts (1956), § 16.13, p. 945; Prosser, Torts (2 ed. 1955), § 33, p. 147. So, for example, while pointing out that the weight of authority rejects the idea of degrees or kinds of negligence, Prosser states that the single standard, the behavior of the reasonable man, will require varying Amounts of care:

'The amount of care demanded by the standard of reasonable conduct must be in proportion to the apparent risk. As the danger becomes greater, the actor is required to exercise caution commensurate with it. Those who deal with instrumentalities that are known to be dangerous, such as electricity, gas, explosives, or elevators, must exercise A great amount of care because the risk is great.' (Ibid.) (Emphasis added.)

So also in Salmond, Torts (11th ed. 1953), § 149, p. 511, appears:

'The law of torts * * * does not recognize different standards of care or different degrees of negligence in different classes of cases. The sole standard is the care that would be shown in the circumstances by a reasonably careful man, and the sole form of negligence is a failure to use this amount of care. It is true, indeed, that this amount will be different in different cases, for a reasonable man will not show the same anxious care when handling an umbrella as when handling a sword. * * *'

C

In the usual case, the jury determines both the Quantum of hazard and the Quantum of care. As Prosser states it (Supra, § 33, p. 149):

'The prevailing view is that there are no 'degrees' of care or negligence, as a matter of law; there are only different amounts of care as a matter of fact. * * *'

But where human experience uniformly suggests the amount of care a reasonable man should exercise in a given set of circumstances, the courts may properly fix the amount of required care as a matter of law, thus taking from the jury the factual inquiry ordinarily left with it as to the amount of hazard and care. Thus in 2 Restatement of Torts (1934), § 285, we find:

'The standard of conduct of a reasonable man

'(a) may be established by a legislative enactment or a judicial decision, or

'(b) may be applied to the facts of the case by the trial judge or the jury, if there be no such legislative enactment or judicial decision.'

In comment (d) it is pointed out that 'Certain situations, or combination of situations, recur with such frequency that it is possible to find a fairly definite expression of judicial opinion as to the manner in which persons who find themselves therein should conduct themselves'; and 'To the extent that the decision declares particular conduct to be up to or below the socially required standard, it defines the conduct of the reasonable man and narrows the field in which the opinion of the trial judge or jury is operative. Occasionally a situation occurs so often that a series of appellate decisions deals with so much of the customary conduct of both parties as to afford a fairly exhaustive definition of the conduct of reasonable men in such situations.'

So, for example, with respect to firearms and other dangerous agencies, our decisions fix as a matter of law the amount of...