Greenfield v. Dusseault

• Decision Date: 24 March 1960
• Docket Number: No. A--699,A--699
• Parties: Jack GREENFIELD, Plaintiff-Respondent, v. Robert DUSSEAULT, Defendant-Appellant.
• Court: New Jersey Superior Court — Appellate Division

Page 436

60 N.J.Super. 436

159 A.2d 433

Jack GREENFIELD, Plaintiff-Respondent, v. Robert DUSSEAULT, Defendant-Appellant.

No. A--699.

Superior Court of New Jersey

Appellate Division.

Argued Feb. 22, 1960.

Decided March 24, 1960.

John J. O'Donnell, Morristown, for defendant-appellant (Egan, O'Donnell & Handley, Morristown, attorneys).

Jacob Siegal, Bayonne, for plaintiff-respondent (Sam Weiss, Newark, of counsel).

Before Judges GOLDMANN, CONFORD and FREUND.

The opinion of the court was delivered by

FREUND, J.A.D.

This is an automobile collision case, tried in the Law Division without a jury, in which each of the parties charged the other, at various points in the pleadings, with either sole or contributory negligence. The trial judge found in favor of the plaintiff Jack Greenfield, and proceeded to enter judgment on the complaint against the defendant Robert Dusseault in the sum of $2,758, and to dismiss his counterclaim. Defendant appeals, principally contending that the weight of the evidence established plaintiff's contributory negligence and that recovery is barred on that ground as a matter of law.

At about 4:00 p.m. on December 27, 1957 plaintiff was driving in a westerly direction on Route 46 in Caldwell. This is a four-lane highway, divided by a 12-foot wide center island, which in turn is broken by openings at various points to permit turning around. The two westbound lanes have a combined width of 20 feet. Plaintiff was driving his children home from an ice skating rink, but was first 'looking for a place that made fireplace materials.' He stopped for directions at a gasoline station, which was on the north side of Route 46, and left his car on the shoulder of the highway, facing westward. Plaintiff was told he had to turn his car around and proceed in an easterly direction on the highway. There was an opening in the center island about 10 feet to the west of the gasoline station; to reach it, plaintiff was required to drive in a southwesterly direction across the westbound lanes. He turned the car in this direction, on the shoulder at a 45-degree angle to the highway, and waited with the motor running until the traffic cleared.

Plaintiff made observation of the roadway by looking out the window, over his left shoulder. The traffic was 'rather heavy' and plaintiff was 'looked to make sure' where he could 'get out safely or not.' He waited 'about two or three minutes' and 'didn't move until * * * there was an empty space.' Plaintiff saw a car coming, but it was 'two to three blocks away' and 'didn't seem to going fast.' Plaintiff estimated it was about 150 yards away. He put on his directional signal and pulled into the highway at about 10 to 15 miles per hour. When the car had traveled about 25 feet across the west-bound lanes and partly into the cut in the island, the left rear was struck by the left front of the defendant's car. The impact caused plaintiff to be thrown out of his car and into the opening.

Defendant had also been at the skating rink, taking photographs for a newspaper of a local 'Girl of the Month' whom he was driving home. He was proceeding westerly in the left, passing lane of Route 46, allegedly at a speed no greater than 45 miles per hour. Immediately prior to the impact, there were no cars on his right. He claimed to have seen plaintiff's car standing on the shoulder when he was 200 yards away. Defendant testified that when he was but two or three car-lengths away, plaintiff's car 'pulled in front,' requiring him to slam on his brakes and swerve to the right; but a version of the accident predicated on a sudden movement of plaintiff's car when defendant was only a few yards away was rejected by the fact-finder, and we do not consider it further.

A police officer testified that he took a statement from the defendant at the scene, in which the defendant said he had been blinded by the sun and had not seen plaintiff's car pulling out of the station. Defendant denied having given the latter portion of this statement. The officer said he had observed debris resulting from the collision in the middle of the westbound lanes.

At the conclusion of the proofs, the trial judge said he was satisfied that plaintiff had made careful observations while in a standing position, had used his directional signal to indicate an intention to turn, and had moved onto the road at an oopportune time. He found that the front of plaintiff's car had entered the cut in the island at the time of the collision.

On the issue of primary negligence, the court was justified in finding against the defendant on the evidence presented. Defendant admitted he had been blinded by the sun and had been driving in a lane ordinarily reserved for passing. His high speed can be inferred from the force with which he smashed into the rear of plaintiff's car. The police officer testified he found plaintiff's car 'over on the shoulder of the eastbound lane,' which meant that it had been jolted through the 12-foot center island opening and across and free of the two eastbound lanes--a trajection of 'approximately 40, 45 feet.' Although the impact was a severe one and defendant said he had applied his brakes before the collision, his car could not be stopped until it was '50 to 100 feet' past the point of impact. Moreover, defendant's youthful passenger was not brought forward to corroborate his explanation that the accident had been caused by plaintiff's 'shooting out of the shoulder.' There was ample proof of defendant's failure to act reasonably after he had, from an admitted distance of 200 yards, full view of plaintiff's car.

But defendant contends that plaintiff's own testimony conclusively establishes that he did not operate his vehicle in accordance with the degree of care imposed upon him under the circumstances. It is urged that plaintiff was contributorily negligent in failing to make an effective observation of the approaching car, and that logic fairly compels a finding that plaintiff did not yield the right of way to traffic approaching on the highway and did not seek an opportune time to make the left or U-turn.

In general terms, the operator of a motor vehicle must exercise such reasonable care and caution for his own safety as an ordinarily prudent man would exercise under like circumstances. He must exercise such amount of care as is commensurate with the risk of harm involved. Ambrose v. Cyphers, 29 N.J. 138, 144, 148 A.2d 465 (1959). More specifically, a person seeking to make a U-turn or a left turn across the path of other traffic has the duty to await an opportune moment and to exercise an amount of care in proportion to the increased danger involved in the turn. Id., 29 N.J. at page 150, 148 A.2d at page 471. He is required to yield the right of way to such other users of the roadway as can reasonably be expected to come into proximity to the space he must occupy in the course of the maneuver. See N.J.S.A. 39:4--66.1. See also N.J.S.A. 39:4--126. Movement into a traffic lane from the shoulder of a rural highway may require the exercise of a greater amount of care than a similar movement from the curb of a city street since the speed of approaching vehicles is ordinarily greater upon the open highway. Annotation, 29 A.L.R.2d 107, 128 (1953).

The mere fact, however, that a person drove from the shoulder onto the highway and collided with a passing vehicle has been held not to require a finding of negligence or contributory negligence, where there is evidence indicating the exercise of proper care. Id., at page 131; 5A Am.Jur., Automobiles and Highway Traffic, §§ 722, 723 (1956). Cf. Baca v. Public Service Co-ordinated Transport, 128 N.J.L. 8, 24 A.2d 177 (E. & A.1942); LeBavin v. Suburban Gas Co., 134 N.J.L. 10, 45 A.2d 664 (E. & A.1946); Goldsboro v. Central R. Co., 60 N.J.L. 49, 37 A. 433 (Sup.Ct.1897).

There are several cases in our jurisdiction holding that the assessment of the kind of conduct engaged in by plaintiff in the present case is peculiarly for the trier of the facts. In Baxter v. Public Service Transportation Co., 6 N.J.Misc. 1099, 143 A. 748 (Sup.Ct.1928), a youthful woman driver made a U-turn in the face of two approaching vehicles. The operator of one managed to pass her on the right, but the other vehicle, a bus, collided with her. A finding against the bus driver and in favor of the owner of the car which the woman was driving was affirmed, the court ruling that it was for the jury to decide the issues of negligence and contributory negligence. A like result was reached in Moran v. Boogher, 8 N.J.Misc. 50, 148 A. 181 (Sup.Ct.1930), where plaintiff had crossed in front of defendant as a distance of but 150 feet. In Padula v. Public Service Co-ordinated Transport, 11 N.J.Misc. 69, 165 A. 123 (Sup.Ct.1933), plaintiff had pulled out from a parking place into the traffic pattern of a busy city thoroughfare, and his verdict survived an appeal on the ground defendant advances in the instant case. In Ambrose v. Cyphers, supra, the argument was even made, albeit unsuccessfully, that one making a U-turn was free from responsibility for a resultant collision as a matter of law; the conduct of the driver in failing to make the necessary observations was held properly submitted to the jury. 29 N.J. at pages 151--152, 148 A.2d at page 472. And in Liberatori v. Yellow Cab Co. of Philadelphia, 35 N.J.Super. 470, 114 A.2d 469 (App.Div.1955), although we reversed a judgment in favor of one who had backed out of a driveway onto the edge of a highway, there was no suggestion of his contributory negligence as a matter of law or of negligence Per se in violating those provisions of our motor vehicle law cited above.

We have no doubt that plaintiff, having observed the defendant's car 450 feet or three blocks away, left himself a rather narrow margin to allow, from a standing position, an uneventful traveral of the westbound lanes and safe entry into the island opening. But in...