Carrino v. Novotny

• Court: United States State Supreme Court (New Jersey)
• Writing for the Court: HUGHES; SCHREIBER; CLIFFORD
• Citation: 78 N.J. 355,396 A.2d 561
• Parties: Madeline CARRINO, Plaintiff-Appellant, v. Jeffrey NOVOTNY, Carl Mellone & Son, Inc., Robert De Simone, Choo Choo Club, and John Doe, jointly, severally and in the alternative, Defendants, and C. J. Mellone & Son, Inc., Defendant-Respondent.
• Decision Date: 08 January 1979

Page 355

78 N.J. 355 396 A.2d 561 Madeline CARRINO, Plaintiff-Appellant,
v.
Jeffrey NOVOTNY, Carl Mellone & Son, Inc., Robert De Simone,
Choo Choo Club, and John Doe, jointly, severally
and in the alternative, Defendants,
and
C. J. Mellone & Son, Inc., Defendant-Respondent. Supreme Court of New Jersey. Argued Dec. 12, 1977.
Decided Jan. 8, 1979.

[396 A.2d 562]

Page 357

Theodore E. Maloof, Hackensack, for plaintiff-appellant (S. Theodore Takvorian, Hackensack, attorney).

Michael J. Mastrangelo, Carlstadt, for defendant-respondent (Mastrangelo & Sattely, Carlstadt, attorneys).

The opinion of the court was delivered by

HUGHES, C. J.

Plaintiff-appellant, Madeline Carrino (hereafter plaintiff), suffered grievous personal injuries in an automobile collision between a car in which she was a passenger and a commercial van illegally parked on a public street in Lodi, New Jersey. At trial a jury verdict awarded her damages of $185,000 against both her host, Jeffrey Novotny, and the owner of the commercial vehicle, a corporation

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variously referred to in some of the pleadings and briefs as Carl Mellone & Son, Inc., C. J. Mellone & Son, Inc. and C. J. Mellone, Inc. (all hereafter "Mellone"). Despite any misnomer, there is no question as to the identity of the corporation as the owner of the vehicle and that it was parked by that corporation by its servant-agent. Judgment was duly entered in accordance with the jury's verdict.

Motions by Mellone for judgment n. o. v. under R. 4:40-2 and for new trial under R. 4:49-1 were duly made, and were considered and denied by the trial judge as memorialized in his formal order:

This matter being opened to the Court * * * on the application of defendant Carl Mellone & Son, Inc., for Judgment N.O.V. (sic) pursuant to R. 4:40-2 or in the alternative for an Order setting aside the jury verdict * * * in the sum of $185,000.00, and ordering a new trial as to all issues pursuant to R. 4:49-1, and the Court having reviewed the testimony at trial, the moving papers, and having heard arguments of counsel, and for good cause shown;

IT IS * * * ORDERED that the motions of defendant Carl Mellone & Son, Inc., for Judgment N.O.V. (sic) or in the alternative for an Order setting aside the jury verdict and ordering a new trial as to all issues be and the same (are) hereby denied * * * .

The Appellate Division reversed the judgment entered against Mellone on the basis of a brief unpublished Per curiam opinion. Because of the importance of its content and scope to the issues we now confront, it is herein reproduced in full:

Plaintiff suffered an accidental personal injury while a passenger in a motor vehicle owned and operated by defendant Novotny at 3:03 a. m. on February 21, 1972. Road conditions were icy, and Novotny's car skidded into a truck owned by defendant C. J. Mellone & Son, Inc. which was parked at the curb.

Following a jury trial, judgment was entered against defendants Mellone and Novotny. This appeal is taken from the judgment against Mellone on the ground that it was entered without proof of negligence. [396 A.2d 563] Plaintiff's cause of action against defendant Choo Choo Club was based upon that defendant's alleged negligence in serving intoxicating beverages to Novotny when he was already visibly under the influence. See Rappaport v. Nichols, 31 N.J. 188, 156 A.2d 1

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(1959). This contention was dismissed by the court on the opening, a ruling which is also appealed only by Mellone.

The plaintiff relied chiefly for her cause of action against Mellone upon a conceded violation of a local ordinance prohibiting street parking by a truck anywhere in the municipality between the hours of 9:00 p. m. and 6:00 a. m. Before us for review is the decision of the trial judge to consider this as evidence of negligence.

It is settled that where a statute or ordinance establishes a certain standard of conduct, one of the class for whose benefit it was enacted obtains the benefit thereof in an action for negligence if the breach of the enactment was the efficient cause of the injury of which he complains. Fortugno Realty Co. v. Schiavone-Bonomo Corp., 39 N.J. 382, 391-393, 189 A.2d 7 (1963); Carlo v. The Okonite-Callender Cable Co., 3 N.J. 253, 264, 69 A.2d 734 (1949); Moore's Trucking Co. v. Gulf Tire & Supply Co., 18 N.J.Super. 467, 472, 87 A.2d 441 (App.Div.1952). But the provisions of the ordinance must be "germane to the type of hazard involved in the defendant's asserted duty." Rodgers v. Reid Oldsmobile, Inc., 58 N.J.Super. 375, 385, 156 A.2d 267 (App.Div.1959); 2 Restatement of Torts, 2d, §§ 286, 288 (1965). The test to be applied therefrom is whether the parking prohibition of the ordinance is addressed to the purpose of traffic safety and therefore germane to any claimed duty owing from the defendant Mellone to the plaintiff.

Whatever may have been the reasons for the ordinance we are satisfied that traffic safety was not one of them. It is applicable throughout the municipality only between the hours of 9:00 p. m. and 6:00 a. m. when traffic is normally lightest. The fact that it applies only to "trucks" does not necessarily imply an intent to safeguard against obstructing the roadway since it makes no attempt to define such a vehicle in terms of a width which would occupy a greater part of the street than a passenger vehicle. Moreover, the element of causation is completely lacking from the circumstances of the accident. It is clear that the collision would have been the same even if the parked vehicle were a passenger car.

We have not overlooked plaintiff's contention that an inference of negligence in its manner of parking was allowable from the posture of the truck with respect to the sidewalk after the accident. We conclude, however, that this evidence was insufficient to support the tendered hypothesis.

Finding no basis in the record for a finding of liability against defendant Mellone the judgment is reversed. In view of this disposition it is unnecessary to deal with this defendant's remaining contentions.

Upon petition of the plaintiff, we granted certification, 73 N.J. 55, 372 A.2d 320 (1977), to examine the validity of the Appellate Division reversal of her judgment against Mellone and,

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necessarily, the trial court's decision not to disrupt it. ¹ That reversal was based upon what was deemed to be an insufficiency of evidence to justify the jury's verdict against Mellone. The assessment of the propriety of such reversal obliges us, as it did the trial judge and indeed the Appellate Division in the fulfillment of their respective responsibilities, to canvass the record, not as a Pro forma exercise and certainly not to substitute the reviewer's judgment for that of the jury. Rather, this "conscientious effort and diligent scrutiny" has one object "to correct clear error or mistake by the jury." Dolson v. Anastasia, 55 N.J. 2, 6, 258 A.2d 706, 708 [396 A.2d 564] (1969); See State v. Johnson, 42 N.J. 146 (1964). As we have recently held in another context, a jury verdict, from the weight of evidence standpoint, is impregnable unless so distorted and wrong, in the objective and articulated view of a judge, as to manifest with utmost certainty a plain miscarriage of justice. Baxter v. Fairmont Food Co., 74 N.J. 588, 379 A.2d 225 (1977).

These limitations on the scope of appellate review are recognized in R. 2:10 of the Rules Governing Appellate Practice, of which section 1 reads:

2:10-1. Motion for New Trial as Prerequisite for Jury Verdict Review; Standard of Review

In both civil and criminal actions, the issue of whether a jury verdict was against the weight of the evidence shall not be cognizable on appeal unless a motion for a new trial on that ground was made in the trial court. The trial court's ruling on such a motion shall not be reversed unless it clearly appears that there was a miscarriage of justice under the law. ²

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The decisional norm guiding the trial judge on a new trial motion is essentially the same:

* * * The trial judge shall grant the motion if, having given due regard to the opportunity of the jury to pass upon the credibility of the witnesses, it clearly and convincingly appears that there was a miscarriage of justice under the law. (R. 4:49-1(a)).

Therefore, as we noted in Baxter, the functional limitations upon both trial and appellate courts are similar in nature except as concerns the "feel of the case" element possessed by the trial judge but absent in the cold appellate record, a factor which has its own limitations as noted by Justice Hall in Dolson v. Anastasia, supra, 55 N.J. at 7, 258 A.2d 706. In the present case, of course, that factor, for what it is worth, weighs on the side of the trial judge's refusal to disrupt a jury verdict rendered in a trial over which he presided. Aside from that point, however, our principal task here is to scrutinize the trial record to determine whether or not it supports the Appellate Division's conclusion.

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That record contains evidence showing that this collision occurred at nighttime on Passaic Avenue in Lodi; that defendant Novotny was operating his car north on Passaic Avenue with plaintiff Carrino a passenger in the right front seat; that the large commercial van owned by Mellone was illegally parked facing north on the east side of Passaic Avenue about 90 feet from the Terrace Avenue intersection; and that the van was used in Mellone's food business and had been parked in that location by its employee.

At the point where the accident occurred, Passaic Avenue is a narrow, 30 foot wide roadway with one lane of travel in each [396 A.2d 565] direction. Along the eastern curb, which is approximately 3 inches high, there was a 3 to 4 inch snow embankment near or on which the van was parked. Testimony and photographs also could have indicated to the jury that the van was parked at an angle to the curb. The west curb-side of this narrow street was...