Cermak v. Hertz Corp.

• Decision Date: 08 July 1958
• Docket Number: No. A--692,A--692
• Citation: 53 N.J.Super. 455,147 A.2d 800
• Parties: Paul CERMAK, Plaintiff-Respondent, v. HERTZ CORPORATION, etc., Defendant, and Aetna Matalcraft, Inc., etc., and Olinto J. DiGeorge, jointly, etc., Defendants-Appellants.
• Court: New Jersey Superior Court — Appellate Division

Page 455

53 N.J.Super. 455

147 A.2d 800

Paul CERMAK, Plaintiff-Respondent, v. HERTZ CORPORATION, etc., Defendant and Aetna Matalcraft, Inc., etc., and Olinto J. DiGeorge jointly, etc., Defendants-Appellants.

No. A--692.

Superior Court of New Jersey

Appellate Division.

Argued June 2, 1958.

Reargued June 16, 1958.

Decided July 8, 1958.

Sylvester S. Garfield and Philip L. Nadler, Red Bank, for plaintiff-respondent (Victor P. Mullica, Union City, on the brief; Pasquale Pipi, Jersey City, and Gross & Garfield, Red Bank, attorneys).

Roger F. Lancaster, Newark, for defendants-appellants (Howard T. Rosen, Newark, on the brief; Schreiber, Lancaster & Demos, Newark, attorneys). Before Judges PRICE, HANEMAN and SCHETTINO.

The opinion of the court was delivered by

SCHETTINO, J.A.D.

This is a negligence action arising out of an automobile accident. The case was tried in the district court after having been transferred there from the county court. The cause of action as against defendant Hertz was dismissed by consent of the parties. The jury returned a verdict in the sum of $15,000 against defendants-appellants and, following a motion by defendants for a new trial, the trial court reduced the verdict to $8,500.

The record of this trial which was not taken stenographically, has been settled pursuant to R.R. 1:6--3. The automobile accident occurred on March 8, 1956. Plaintiff was stopped at the intersection of Mercer and Fremont Streets in Jersey City waiting for heavy traffic on Fremont Street to clear so that he could make a right hand turn on that street when a truck leased from the Hertz Corp. and driven by defendant, DiGeorge for defendant, Aetna Metalcraft, Inc., struck the rear of his car. After counsels' summation to the jury the trial court removed the issue of negligence and limited its consideration to the questions of proximate cause of the claimed injuries and damages.

Appellants contend that this was error. The evidence, as set forth in the record settled by the court, is as follows:

'Plaintiff testified that on or about 10:10 o'clock A.M. on the 8th day of March 1956 plaintiff was operating his passenger automobile in a general westerly direction on and along Mercer Street, which runs east and west, (and that he) gradually stopped at the intersection of Mercer and Fremont Streets, Fremont Street running north and south. Plaintiff was alone in his automobile and it was raining very hard; he intended to go into the nearby Safeway Store's office to repair a typewriter machine. There was no traffic on Mercer Street other than the vehicles of plaintiff and defendant. His automobile stood there at the intersection for two minutes because of the very heavy traffic proceeding north and south on Fremont Street; he intended to make a right turn on Fremont Street in order to park his car and while standing in a stopped position he looked in his rear mirror and saw the defendant's truck some distance away also proceeding in a westerly direction on Mercer Street and when he looked again this truck loomed up and the front of the defendant's truck struck the rear of plaintiff's car 'with a pretty good smash' and knocked his car into the intersection and the trunk lid in the rear of plaintiff's car sprung up. Photographs were admitted into evidence as Exhibits marked P--1, P--2, P--3 and P--4; there were no policemen or traffic signs or lights controlling the traffic at this intersection.' (Emphasis added.)

'* * * Olinto J. DiGeorge was sworn and he stated he was the driver of the defendant, Aetna Metalcraft Inc., that his truck struck plaintiff's car in the rear; he was driving west on Mercer Street and saw plaintiff's car standing stopped, 40 or 50 feet in front, and 'it appeared to me as if the plaintiff would take off again because his rear stop lights went off' whereupon the defendant started up again and when plaintiff failed to move, he struck the rear of the plaintiff's automobile; Plaintiff's automobile was proceeding about 15 to 20 miles per hour before it stopped at the intersection.

'That it was raining very hard and that when defendant attempted to stop he had to fight his wheel to keep it straight; and skidded into the rear of the plaintiff's car; that the plaintiff got out and complained of pain in his neck; that the defendant had two ton load on a 1956 International; that his brakes were in good condition and it was a new truck. After the accident he saw 'oil slickers' on the wet pavement.

'On cross examination he testified that the plaintiff (defendant, DiGeorge?) (sic) applied his brakes when the plaintiff did not proceed from his standing position after his stop lights went off and indicated to him that the plaintiff was going to go forward again and because the plaintiff's automobile did not go ahead he hit his brakes and was unable to stop in time. He applied his brakes with great pressure and put on his emergency brake but skidded into plaintiff's standing automobile, Admitting he had misjudged plaintiff's movement.

'Note by the Court: The Court significantly points out as part of this record that the reference was made by the defendant's driver to 'oil slickers' was not explained nor specifically located with respect to the status of the collision. Nothing further was brought out either on direct or cross-examination concerning its extent, cause or effect and was left barren and any casual (causal) connection to the incident involved.' (Emphasis added).

Initially it should be noted that this agreed statement seems to contain an inconsistency insofar as plaintiff testified that he was stopped at the intersection for two minutes, and that during that time he observed in his rear view mirror defendants' truck approaching from some distance away whereas DiGeorge testified that plaintiff's automobile was proceeding about 15 to 20 m.p.h. before it stopped at the intersection. In any event the inconsistency does not present a factual issue which would bear upon defendants' negligence or any suggestion of plaintiff's contributory negligence. Even had DiGeorge seen plaintiff prior to the time plaintiff stopped, no issue is raised by defendants nor inferable from the facts that plaintiff's speed prior to stopping or anything done by him in the act of stopping contributed to the happening of the accident.

Thus the issue of liability has its inception in the facts from the time plaintiff was actually stopped on Mercer Street at the intersection waiting for an opportunity to make a right-hand turn to Fremont Street and defendants' truck was approaching from the rear at a distance of 40 or 50 feet. Plaintiff's rear stop lights went off, and DiGeorge 'started up again.' It is not self evident from this statement as to whether DiGeorge stopped his truck completely or merely slowed down before 'starting up again' and crashing into the rear of plaintiff's motionless vehicle, but it is clear from the record that defendant saw plaintiff stopped at the intersection and that the cause of the collision was the fact that DiGeorge 'misjudged plaintiff's movement.' He so admits as above noted.

Furthermore, counsel for the defendants in his summation to the jury stated that 'he could not find fault with the jury if it found a verdict for the plaintiff on the question of negligence,' whereupon the trial court removed this issue from the jury's consideration.

In this context we fail to perceive any conflicting inferences from which the jury could have reasonably returned a verdict on the question of negligence other than in favor of plaintiff. Defendants urge that contributory negligence of plaintiff could be bottomed upon the fact that his rear lights went off as defendants' truck was approaching. This bare contention, without more, is erroneous. There was no duty upon the plaintiff to keep his brake lights lit once his vehicle was stopped, nor to put his car in motion the instant he took his foot off the brake. DiGeorge's absolute reliance upon this factor was as foolhardy as it was impractical.

Therefore, we conclude that the trial court was correct in removing the issue of negligence from the determination of the jury since the record shows that there were no disputed questions of fact nor conflicting inferences to be reasonably drawn therefrom which could be determined by it. Ferdinand v. Agricultural Ins. Co. of Watertown, N.Y., 22 N.J. 482, 493, 126 A.2d 323 (1956). In similar situations the courts have often phrased this determination as a matter of law to be decided by the judge and not the jury, but it would seem to be more accurately stated that, in the absence of a factual conflict, the fact-finding function of the jury has no issue upon which it can operate so that it is the duty of the court to accept the facts as they are presented. In a strikingly similar situation in the case of Burr v. Metropolitan Distributors, Inc., 136 N.J.L. 583, at pages 585 and 586, 56 A.2d 882, at pages 883 and 884 (1948), our Court of Errors and Appeals outlined the principles applicable to such a situation when it said:

'The legal principles applicable to this appeal have been well stated by this court in the case of Crosby v. Wells, 73 N.J.L. 790, 67 A. 295, 299. The court said: 'In our country, a verdict may be directed for a plaintiff as well as for a defendant. * * * And the question to be propounded is whether there be any reason why the verdict should not be so directed. * * * The principles with which the answer must accord have been stated in our reports in both positive and negative form. Firstly, the trial court should direct a verdict, when any number of verdicts, if found otherwise than as ordered, would be set aside as without sufficient evidence to support them * * * or when the testimony in the case will not support any other verdict * * *. Secondly, the trial court cannot direct a verdict when any material facts which the parties have been permitted to introduce are in dispute."

Appellant also...