Finley v. Wiley

• Decision Date: 18 September 1968
• Docket Number: No. A--18,A--18
• Citation: 103 N.J.Super. 95,246 A.2d 715
• Parties: Paul J. FINLEY, Plaintiff-Appellant, v. John W. WILEY, Defendant-Respondent.
• Court: New Jersey Superior Court — Appellate Division

Page 95

103 N.J.Super. 95

246 A.2d 715

Paul J. FINLEY, Plaintiff-Appellant, v. John W. WILEY, Defendant-Respondent.

No. A--18.

Superior Court of New Jersey

Appellate Division.

Argued June 17, 1968.

Decided Sept. 18, 1968.

Benjamin H. Chodash, Jersey City, for appellant (Krieger, Chodash & Politan, Jersey City, attorneys).

Albert M. Neiss, East Orange, for respondent (Neiss & Radowitz, East Orange, attorneys).

Before Judges CONFORD, LABRECQUE and HALPERN.

PER CURIAM.

Plaintiff appeals from a judgment in favor of defendant following a jury verdict of no cause for action, and from denial of his motion for a new trial.

Plaintiff sued for personal injuries sustained when an automobile operated by defendant crashed into the rear of a 'cab over tractor' (tractor) being driven by him. The accident occurred on Tonnele Avenue at a point where there were two traffic lanes in each direction divided by a center line. Tonnele Avenue was heavily travelled and 'beset with intersecting streets and traffic lights.' The speed limit was 40 miles an hour. The accident occurred at about 5:15 P.M. on October 2, 1964. It was raining at the time and the road was wet and 'very slippery.' Plaintiff testified that previous to the crash he had been proceeding southerly in the slow lane at about 30 miles an hour. As he was driving along he was struck in the rear without warning.

Defendant had been proceeding south in the fast or inside lane. He testified that as he approached a tractor-trailer (unidentified) which was proceeding in the slow lane, the latter swung into the fact lane. Thinking the driver of the tractor-trailer intended to make a left turn, he first applied his brakes, then swung around the rear of the tractor-trailer into the slow lane in an attempt to pass to the right. When he was able to see ahead in the slow lane he for the first time saw plaintiff's tractor 50 feet in front of him, moving at about 10 (later said to be 15) miles per hour. He again applied his brakes but they locked and, without warning, his car skidded into the rear of plaintiff's tractor. The driver of the tractor-trailer made no left turn, apparently having intended only to pass plaintiff.

The only eyewitnesses to the accident were the respective drivers. At the conclusion of the case plaintiff's motion for withdrawal from the jury's consideration of the defense of contributory negligence was opposed by defendant on the ground that if the jury believed plaintiff was in fact travelling 10 miles an hour in the slow lane, they could find such conduct to be contributory negligence. Plaintiff's motion was denied and the case was submitted to the jury in a charge which required it to make separate and specific findings as to negligence and contributory negligence. In response to written interrogatories the jury found no negligence on defendant's part and contributory negligence on plaintiff's part. The entry of judgment was followed by a motion for a new trial on the ground that the verdict was contrary to the weight of the evidence. Denial of the motion was based upon the trial judge's conclusion that he could not say that the jury's finding of contributory negligence was so against the weight of the evidence as to make it clearly and convincingly appear that the verdict was the result of mistake, partiality, prejudice or passion.

Plaintiff assigns as error (1) the court's ruling on his motion for a new trial, (2) the court's denial of his motion to exclude contributory negligence as an issue, and (3) the inclusion in the charge of the 'sudden emergency' rule.

In passing upon plaintiff's challenge to the court's denial of his motion for a new trial, we are mindful that our appellate power is sharply circumscribed and we may not disturb the order appealed from unless, having due regard to the better opportunity of the trial judge to observe the witnesses and judge credibility, Hartpence v. Grouleff, 15 N.J. 545, 549, 105 A.2d 514 (1954), it clearly and convincingly appears that there has been a manifest denial of justice under the law. Kulbacki v. Sobchinsky, 38 N.J. 435, 452, 185 A.2d 835 (1962). If reasonable minds might accept the evidence as adequate to support the jury's findings, we may not disturb the action of the trial court. However, where it clearly and convincingly appears that the verdict was the result of mistake, partiality, prejudice or passion, it cannot serve to support the judgment, Hager v. Weber, 7 N.J. 201, 210, 81 A.2d 155 (1951), and it becomes our duty to act. Cf. Fisch v. Manger, 24 N.J. 66, 80, 130 A.2d 815 (1957).

As noted, in response to the court's direction, the jury found specially that defendant was free of negligence, and that plaintiff was guilty of contributory negligence. In his opinion denying the motion for a new trial the trial judge made no finding as to whether the jury's verdict on the issue of defendant's negligence was contrary to the weight of the evidence but premised denial of the motion on his conclusion that there was evidence to support the finding that plaintiff was guilty of contributory negligence.

In the absence of any finding by the trial judge on the issue of defendant's negligence, we have reviewed the transcript in its entirety and find it to be devoid of facts which reasonable minds might accept as an adequate basis for the jury's finding that defendant was free of negligence. Kulbacki v. Sobchinsky, supra, at p. 452, 185 A.2d 835. Notwithstanding the fact that it was raining and the roadway was (to use his own words) 'very slippery,' he had been, for reasons not explained, operating his car on a busy highway at the height of the rush hour in the fast lane at a speed which approached the maximum permitted. When he came upon the unidentified tractor-trailer it was blocking his view of the slow lane ahead. When it pulled into the left lane when it was 60--70 feet ahead of him, he, after braking, swerved to the right into the slow lane, only to be confronted with plaintiff's tractor. That his vision was obstructed both before and as he pulled into the slow lane is conceded in his own testimony, particularly that part in which he said, 'My vision was blurred--was obstructed, * * * and until the trailer completely passed me, cleared me I couldn't see the--till the trailer--until the box trailer completely cleared my vision I didn't see the plaintiff's tractor.'

The driver of an automobile is not entitled to operate his vehicle upon a public street blindfolded. Hammond v. Morrison, 90 N.J.L. 15, 16, 100 A. 154 (Sup.Ct.1917). The exercise of reasonable care requires that when his vision is obstructed he immediately take action to restore it and in the meantime, stop or slow down if that is required. He may not proceed ahead on the assumption that the road will clear. Levine v. Scaglione, 95 N.J.Super. 338, 341, 231 A.2d 229 (App.Div.1967). See also Robinson v. Mutnick, 102 N.J.L. 22, 25, 131 A. 67 (Sup.Ct.1925); Osbun v. De Young, 99 N.J.L. 204, 208, 122 A. 809 (E. & A. 1923); Anderson v. Public Service Corporation, 81 N.J.L. 700, 705, 80 A. 480 (E. & A. 1911). Here the obstruction to defendant's vision was not, as in the majority of cases, a sudden impairment of vision caused by the sun or by oncoming headlights but the presence of a large box trailer--a condition he had observed when 200 feet away--which blocked his view of traffic ahead in the slow lane. By reason of it, he was not in a position to ascertain, before moving into the slow lane, that the movement could be made with safety, as required by N.J.S.A. 39:4--88(b) and N.J.S.A. 39:4--126.

The defendant urges that he was confronted with a sudden emergency which afforded an excuse for his failure to exercise greater care and caution at the time. Not so. On the issue of the existence of an 'emergency' the record reveals no more than that the unidentified tractor-trailer was driven into the left lane, apparently for the purpose of making a left turn. Such a movement posed no more than an ordinary everyday traffic condition with which he should have been prepared to code.

Defendant's characterization of the movement of the tractor-trailer as a 'sudden swerve' added nothing to the picture. So far as appears from the record it pulled into the fast lane safely and continued on. Defendant made no attempt to describe the swerve in terms of being too wide or too sharp. He made no mention of Any kind of 'swerve' to the investigating police officer at the scene and there is no reference in the police report (which was received in evidence) to any claim by him that the driver of the tractor-trailer had been guilty of any violation in pulling into the left lane.

If by the use of the adjective 'sudden' defendant meant fast or rapid, it was conceded by him that the speed of the tractot-trailer was less than his own. If by it he meant 'without warning,' this contention is belied both by the testimony of the investigating officer, and by the police report's rendition of what he told the officer at the scene. The officer testified that upon inquiry as to what had happened defendant told him that an unidentified tractor and trailer 'put his directional signals on and crossed over into the inside lane.' The narrative in the police report recited that 'an unidentified tractor, and trailer With left directional signals on changed from the outside to inside lane.' (Emphasis added.) It further recited, 'Driver #1 (defen...