Burdzy v. Cooney

• Decision Date: 04 February 1987
• Citation: 521 A.2d 364,215 N.J.Super. 98
• Parties: Edward BURDZY and Kristine Burdzy, Plaintiffs-Appellants, v. Louise COONEY, Defendant-Respondent.
• Court: New Jersey Superior Court — Appellate Division

Page 98

215 N.J.Super. 98

521 A.2d 364

Edward BURDZY and Kristine Burdzy, Plaintiffs-Appellants, v. Louise COONEY, Defendant-Respondent.

Superior Court of New Jersey Appellate Division.

Argued Jan. 6, 1987.

Decided Feb. 4, 1987.

Howard Duff, Flemington, argued the cause, for plaintiffs-appellants (Reed, Strauss & Tauriello, attorneys; Robert B. Reed, of counsel; Howard Duff, on the brief).

Joseph H. Burns, Florham Park, argued the cause, for defendant-respondent (Edward R. Martin, Whitehouse, attorney; Joseph H. Burns, Florham Park, of counsel and on the letter brief).

Before Judges MICHELS and O'BRIEN.

The opinion of the court was delivered by

MICHELS, P.J.A.D.

Plaintiffs Edward Burdzy and Christine Burdzy appeal from a judgment of the Law Division entered in favor of defendant Louise Cooney on a molded jury verdict in this personal injury automobile negligence action.

The proofs essential to resolve the issues raised on this appeal are not in dispute. The accident occurred at the intersection of Routes 165 and 29 in Lambertville, New Jersey. Plaintiff Edward Burdzy was travelling south on Route 165 and defendant was travelling south on Route 29. Route 29 is controlled by a yield sign where it merges with the southbound lanes of Route 165. Thus, traffic travelling south on Route 29 is required to yield before entering the flow of southbound traffic on Route 165. A short distance further south on Route 165, beyond the point where the southbound lanes of that highway merge with Route 29, there is a break or cut out in the median of Route 165 through which drivers heading south may make a U-type turn in order to change direction and head north on Route 165.

Defendant, who was travelling south on Route 29, slowed down but did not stop at the yield sign before entering Route 165 South. She intended to proceed across both southbound lanes of Route 165 to the cut out in the median and then turn onto Route 165 heading north. However, before plaintiff reached the break in the median, the accident occurred.

Plaintiff Edward Burdzy instituted this action to recover damages for the personal injuries he sustained as a result of the accident. His wife sued per quod. At the conclusion of the trial, the jury found plaintiff Edward Burdzy 81.6% negligent, defendant 18.4% negligent and assessed damages at $21,667.00 and $0, for Edward Burdzy and his wife, respectively. The trial court, pursuant to N.J.S.A. 2A:15-5.2.c, molded the verdict and entered a judgment of no cause for action in favor of defendant. Plaintiffs' motion for a new trial was denied and this appeal followed.

Plaintiffs seek a reversal and a remand for a new trial as to both liability and damages. They contend that the trial court erred (1) in instructing the jury with respect to both N.J.S.A. 39:4-144 and N.J.S.A. 39:4-90 because the intersection was governed by a yield sign and (2) in failing to instruct the jury as to the standard of care required when making a U-turn.

I.

The trial court committed reversible error in charging portions of both N.J.S.A. 39:4-144 and N.J.S.A. 39:4-90. N.J.S.A. 39:4-90, concerning the right of way at intersections, provides in part:

The driver of a vehicle approaching an intersection shall yield the right of way to a vehicle which has entered the intersection....

The driver of a vehicle within an intersection intending to turn to the left shall yield to a vehicle approaching from the opposite direction which is within the intersection or so close thereto as to constitute an immediate hazard, but the driver having so yielded, and having given a signal when and as required by law, may make the left turn; and other vehicles approaching the intersection from the opposite direction shall yield to the driver making the left turn.

N.J.S.A. 39:4-144, concerning stopping or yielding the right of way before entering stop or yield intersections, provides in part:

... No driver of a vehicle or street car shall enter upon or cross an intersecting street marked with a "yield right of way" sign without first slowing to a reasonable speed for existing conditions and visibility, stopping if necessary, and the driver shall yield the right of way to all traffic on the intersecting street which is so close as to constitute an immediate hazard; unless, in either case, he is otherwise directed to proceed by a traffic or police officer or traffic control signal, or as provided in section 39:4-145 of this Title.

It is perfectly clear that N.J.S.A. 39:4-90 does not apply to establish a standard of care at an intersection where, as here, the traffic is controlled by a yield sign. Cf. Beck v. Washington, 149 N.J.Super. 569, 573, 374 A.2d 478 (App.Div.1977); DePolo v. Caplan, 119 N.J.Super. 56, 58, 290 A.2d 152 (App.Div.1972). The appropriate standard of care is codified in N.J.S.A. 39:4-144. A driver of a vehicle entering a yield intersection at or about the same time as another is certainly close enough to constitute an immediate hazard and, therefore, pursuant to the statutory standard, is required to yield the right of way to all traffic on the intersecting street. Although the trial court properly instructed the jury with respect to the provisions of N.J.S.A. 39:4-144, it should not also have instructed the jury with respect to the right of way standard under N.J.S.A. 39:4-90. To have done so in the circumstances of this case was erroneous and misleading.

The trial court's supplemental charge did not cure the error occasioned by charging portions of both N.J.S.A. 39:4-90 and N.J.S.A. 39:4-144. The inapplicability of N.J.S.A. 39:4-90 was not conveyed by the curative charge which simply read:

This is a controlled intersection, as I indicated to you, so the other statute which I read about stopping or yielding at the intersections [ N.J.S.A. 39:4-144], perhaps maybe [sic] the one which you feel is more appropriate here. (Emphasis supplied).

Instead of emphatically instructing the jurors to apply N.J.S.A. 39:4-144 and to disregard N.J.S.A. 39:4-90, the trial court incorrectly left the determination of which statute was most appropriate to the jury's discretion. Accordingly, the trial court's instruction in this regard was error, mandating a new trial.

II.

We are also satisfied that the trial court erred in refusing to instruct the jury as to the appropriate standard of care to be employed when defendant crossed the southbound lanes of Route 165 preparatory to making a U-type turn into the northbound lanes of that highway. The jury instruction generally recommended with respect to a U-turn involving the movement of a vehicle across the path of other traffic is set forth in Ambrose v. Cyphers, 29 N.J. 138, 149-150, 148 A.2d 465 (1959) as follows:

1. The law imposes upon the driver of an automobile the duty to exercise the care that a reasonably prudent man would use under all the circumstances confronting him at a particular time. Failure to exercise such care constitutes negligence.

2. Obviously the risk of harm will vary with the circumstances. In some settings that risk is greater than in others, and, when this is so, a reasonably prudent man will exercise a greater amount of care in proportion to the increased risk.

3. With respect to a U-turn, involving as it does a movement across the path of other traffic, the risk of harm is ordinarily increased beyond that which exists when a car is proceeding along a direct course. Hence with respect to a U-turn, a reasonably prudent man would seek an opportune moment for the turn and would exercise an increased amount of care in proportion to the increased danger.

4. Accordingly...