Biruk v. Wilson, A--110

• Court: United States State Supreme Court (New Jersey)
• Writing for the Court: HANEMAN
• Citation: 234 A.2d 225,50 N.J. 253
• Parties: Dennis R. BIRUK, an infant, et al., Plaintiffs-Appellants, v. William WILSON et al., Defendants-Respondents.
• Docket Number: No. A--110,A--110
• Decision Date: 09 October 1967

Page 253

50 N.J. 253 234 A.2d 225 Dennis R. BIRUK, an infant, et al., Plaintiffs-Appellants,
v.
William WILSON et al., Defendants-Respondents. No. A--110. Supreme Court of New Jersey. Argued June 6 and 7, 1967.
Decided Oct. 9, 1967.

Page 255

[234 A.2d 227] Nicholas Conover English, Newark, for appellants Dennis Biruk and George Biruk (McCarter

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& English, Newark, attorneys, Joseph E. Irenas, Elizabeth, on the brief).

Sam Weiss, Newark, for respondents Janice Mayercik and others (Henry C. Ruttiger, Metuchen, attorney).

Thomas B. Mannion, New Brunswick, for respondents Dorothy Meier and others (Lynch, Murphy, Mannion & Lynch, New Brunswick, attorneys).

Solomon Lubow, Jersey City, for respondent Steven Warchol (Chazin & Chazin, Jersey City, attorneys).

The opinion of the court was delivered by

HANEMAN, J.

This case arises out of a two car automobile accident which occurred in Highland Park, N.J. at about 9:30 P.M. on August 13, 1963. William Wilson, a minor, operating the car of his uncle, Henry Stone, was travelling east on Route 27, a four-lane road divided by a double white line, accompanied by Dorothy Meier and Janice Mayercik, also minors. At some point west of the intersection of Route 27 and Eighth Avenue he applied his brakes, causing the car to skid across the double center line into the left-hand westbound lane. According to Wilson he did so because of a car stopping in the road some distance ahead of him. The result was a collision with a car driven by another minor, Dennis Biruk, and owned by his father, travelling west in the left lane. Riding with Biruk as a passenger was Steven Warchol. The two girls, Warchol and Biruk suffered considerable injuries. Janice Mayercik, her father, Dorothy Meier, her father and mother, and Steven Warchol brought suit against Wilson, Stone, Dennis Biruk and his father. The Biruks brought an action against Wilson and Stone. The cases were consolidated and the jury determined that William Wilson and Dennis Biruk were negligent and awarded damages as follows: Janice Mayercik, $30,000; her father, $5,188; Dorothy

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Meier, $18,500; her parents, $1,279.55; and Steven Warchol, $15,000.

The Biruks appealed from the judgments in their suits against Wilson and Stone and on the actions undertaken by the Mayerciks, Meiers and Warchol against them, to the Appellate Division which affirmed in an unreported Per curiam opinion. Wilson, who was uninsured and represented by the Unsatisfied Claim and Judgment Fund at trial did not appeal nor contest Biruks' appeal before the Appellate Division and has not contested the action before this Court. We granted Biruks' petition for certification. 48 N.J. 120, 233 A.2d 497 (1966).

In substance, Biruks' appeal urges that: (1) the jury's finding of liability was contrary to the weight of the evidence; (2) the verdicts in favor of Janice Mayercik and Dorothy Meier and their parents were excessive; (3) they were prejudiced by the trial tactics of opposing attorneys; and (4) there was error in the charge as given and in the omissions to give certain requested charges.

I

Dennis Biruk testified at the trial that the Wilson car skidded suddenly into his lane almost immediately in front of him. There was no warning to alert him to the danger. Steven Warchol, however, stated that he saw the car skidding in the westbound lane about 150 feet ahead and [234 A.2d 228] shouted a warning to Dennis Biruk which went unheeded. William Wilson testified that when he first started skidding he observed a car approaching in the westbound lane about 100 feet away. In the suits against the Biruks, the plaintiffs' theory of liability was that Dennis Biruk had ample warning of the presence of Wilson's car in his lane and that he should have taken some action to avoid the accident. In addition to the above cited testimony of Warchol, plaintiffs in the suits against the Biruks introduced evidence as to the physical surroundings at the scene of the accident. They argued

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that had Dennis Biruk been acting with reasonable care there were numerous places where he could have steered his car to avoid the accident.

Upon examining the record we view the question of Dennis Biruk's negligence as a very close one. Nevertheless, we cannot sustain appellants' claim that the jury's finding of liability was contrary to the weight of the evidence.

II

We find no merit in the claim that the verdicts in favor of the girls and their parents were excessive.

III

We do find, however, that the tactics of the attorneys for Warchol and the Meiers should not have been permitted especially in the light of the factual complex surrounding the accident as testified to at the trial.

The testimony indicated that shortly prior to the accident Biruk and Warchol had stopped at a McDonald's Hamburger Drive-In on Route 27. While there Biruk met and briefly conversed with one Robert Jasper, a friend with whom he sometimes double dated. After a couple of minutes Jasper left, proceeding west on Route 27. Shortly thereafter, Biruk and Warchol also left and proceeded west. Biruk testified that the cars later stopped side by side at a traffic light about a mile up the road. Warchol did not remember seeing Jasper after he left McDonald's. When the light turned green Jasper accelerated faster and proceeded down the road.

In Biruk's deposition which was used by Warchol's attorney on cross-examination Biruk stated, 'He went first and he kept going away from us, pulling away from us'. Biruk was aware of the fact that Jasper remained up ahead because he could see the tail-lights of his car. At the time of the accident he estimated that Jasper was about 300 yards ahead of him.

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Jasper's name was listed by Biruk in his answers to Interrogatories and he was available for questioning by all parties. Despite this the attorney for the Meiers stated the following in his summation:

"Now the mention of Mr. Warchol brings up the other name, the witness or not...