Jurman v. Samuel Braen, Inc.

• Decision Date: 07 April 1965
• Docket Number: Nos. A--251,A--280,s. A--251
• Citation: 87 N.J.Super. 301,209 A.2d 334
• Parties: Helen A. JURMAN, Executrix of the Estate of Julius J. Jurman, deceased, Plaintiff-Respondent, v. SAMUEL BRAEN, INC., etc., et al., Defendants-Appellants.
• Court: New Jersey Superior Court — Appellate Division

Page 301

87 N.J.Super. 301

209 A.2d 334

Helen A. JURMAN, Executrix of the Estate of Julius J Jurman, deceased, Plaintiff-Respondent, v. SAMUEL BRAEN, INC., etc., et al., Defendants-Appellants.

Nos. A--251, A--280.

Superior Court of New Jersey

Appellate Division.

Argued Jan. 25, 1965.

Decided April 7, 1965.

Nicholas Scalera, Newark, for appellants (George D. McLaughlin, Newark, attorney).

John P. Holly, Newark, for respondent.

Before Judges GAULKIN, FOLEY and COLLESTER.

The opinion of the court was delivered by

FOLEY, J.A.D.

Plaintiff recovered a judgment of $75,000 for wrongful death, and $900 for property damage to her decedent's automobile. Defendants appeal. Plaintiff cross-appeals from an order of the trial court apportioning the damages recovered in the death action between the widow and an infant child of her marriage to decedent, they being the sole surviving next of kin.

The accident from which the action arose occurred about 6 A.M. on April 9, 1962, at the intersection of Essex Street and Second Street in Hackensack, New Jersey, a rightangle intersection which is not controlled by traffic signals or signs. Dominick Gallitano, an employee of Braen, was operating a pickup truck owned by Braen, in the course of the latter's business, and was proceeding westerly on Essex Street. Jurman, the decedent, was driving a passenger car in a southerly direction on Second Street. The cars collided in the northwest quadrant of the intersection. Debris was found in this area by Sergeant Paolella and Officer Mellone of the Hackensack Police Department when they arrived at the scene shortly after the accident occurred. Photographs introduced by plaintiff without objection indicated that the entire front of the pickup truck and the left side of the passenger vehicle were smashed in as a result of the impact. When the cars came to rest the passenger vehicle was on a lawn adjacent to an apartment building on the southwest corner. The pickup truck which had been spun around by the impact was facing east on the southerly side of Essex Street, east of the intersection.

The only surviving eyewitness was Gallitano. When called as a witness by plaintiff he testified that as he approached Second Street at a speed of about 15 miles per hour, there was nothing to prevent him from 'looking down' that street. He said that when he was about 50 feet from the intersection he looked to his right and saw nothing approaching within a distance of 75 feet from the intersection. He then proceeded into the intersection without further observation, and when he reached the center, out of the shadow of (his) eye' he saw a car coming 'full speed.' It was about three or four feet away, 'so close (he) couldn't estimate.' This was the first time he saw the Jurman car. He said also that when he first observed the car it was 'right close' to Essex Street and was 'maybe' the length of 'one or two cars' away. Again he said it was 'right in front' of him and that the accident happened a fraction of a second after he first saw it.

At the close of plaintiff's case defendants moved for a judgment of involuntary dismissal upon the grounds that plaintiff had failed to prove defendants' negligence, and that Jurman's contributory negligence had been established as a matter of law. The motion was denied. Defendants challenge that ruling.

On such a motion the trial court cannot weigh the evidence but must accept as true all evidence which supports the view of the party against whom the motion is made and must give him the benefit of all legitimate inferences which are to be drawn therefrom in his favor. Melone v. Jersey Central Power & Light Co., 18 N.J. 163, 170, 113 A.2d 13 (1955). Clearly, the evidence, as above outlined, was susceptible of inferences from which reasonable men could conclude that Gallitano had been negligent. As to the issue of contributory negligence, '(o)nly in the clearest case of contributory fault, where the contrary hypothesis is not fairly admissible, does the question become one of law for decisive action by the court.' Battaglia v. Norton, 16 N.J. 171, 179, 108 A.2d 1, 5 (1954). Without further discussion we conclude that the trial judge properly decided the motion for involuntary dismissal.

Defendants rested without introducing any evidence. Following the verdict defendants moved for a new trial alleging, Inter alia, that the verdict was against the weight of the evidence. The motion was denied, and we think properly. It is well established that on such a motion the function of the trial court is only to determine whether the verdict is so contrary to the weight of the evidence as to give rise to an inescapable conclusion of mistake, passion, prejudice, or partiality, so that the evidence relied upon cannot serve to support the judgment. Hager v. Weber, 7 N.J. 201, 210, 81 A.2d 155 (1951). Phrased differently, the trial court must determine whether reasonable minds might accept the evidence as adequate to support the jury verdict. Kulbacki v. Sobchinsky, 38 N.J. 435, 445, 185 A.2d 835 (1962). Upon a review of the trial judge's disposition of the motion for new trial we may not disturb his action unless it clearly and unequivocally appears it was a manifest denial of justice under the law. Id., at p. 446, 185 A.2d 835; Hartpence v. Grouleff, 15 N.J. 545, 105 A.2d 514 (1954).

Defendants raise as plain error under R.R. 1:5--3(c) two portions of the judge's charge to which no objection was made at the trial. At the request of plaintiff the court charged as follows:

'* * * there is a presumption that a person was not negligent and was acting lawfully until that presumption is overcome by proof to the contrary.

With regard to the defendants' claim that the decedent was guilty of contributory negligence, you are instructed that the law presumes that at the time and place in question the decedent was using due care when he drove his car into the intersection. By due care is meant that he is presumed to have been doing what a reasonably prudent person would have done under the like or similar circumstances as they existed at the time.'

There is no doubt that the presumption of the exercise of due care by a decedent is recognized as one which should be indulged in by the court on motions attacking the sufficiency of plaintiff's evidence, made either during the trial or on motion for new trial.

Danskin v. Pennsylvania R.R. Co., 79 N.J.L. 526, 76 A. 975 (E. & A. 1910), seems to be the first case in which there was reference to this presumption. In that case decedent drove his wagon onto the railroad tracks and was struck by a train at an unguarded crossing. Defendant's motion for nonsuit was granted, and in reversing the court stated:

'No presumption of negligence upon the part of the decedent arises in such an action as the present one from the mere occurrence of the accident. (citing cases)

In view of the Presumption of due care upon the part of the decedent, we are of the opinion that this evidence left the question of his constributory negligence in doubt, and, in such case, it was for the determination of the jury. McLean v. Erie R. Co., 40 Vroom 57, 54 Atl. 238, aff'd 41 Id. 337, 57 A. 1132. The nonsuit was therefore erroneous.' (at pp. 528--529, 76 A. at p. 976 emphasis added)

Other cases in which the presumption was mentioned and used in rejecting an attack upon the sufficiency of the evidence are: Bergmann v. Public Service Railway Co., 98 N.J.L. 487, 120 A. 193 (E. & A.1922); Lambert v. Emise, 120 N.J.L. 164, 199 A. 44 (Sup.Ct.1938); Tate v. Costa, 29 N.J.Super. 527, 531, 103 A.2d 16 (App.Div.1954); Bergquist v. Penterman, 46 N.J.Super. 74, 134 A.2d 20 (App.Div.1957), certification denied 25 N.J. 55, 134 A.2d 832 (1957); Shutka v. Pennsylvania R.R. Co., 74 N.J.Super. 381, 181 A.2d 400 (App.Div.1962); Gluckauf v. Pine Lake Beach Club, Inc., 78 N.J.Super. 8, 187 A.2d 357 (App.Div.1963).

However, we find no reported case in this State in which our courts have expressly decided whether a jury may be instructed concerning the presumption of a decedent's due care, and may consider it in resolving the issues of negligence or contributory negligence.

In determining whether or not a presumption should be submitted to a jury and weighed by it, consideration must be given to the nature and effect of the presumption. In Heye v. Alpert, 82 N.J.Super. 58, 62, 196 A.2d 673, 675 (App.Div.1964), certification denied 41 N.J. 601, 198 A.2d 446 (1964), this court held that the presumption of the exercise of due care by a decedent 'is not a true presumption but simply another form of statement of the elementary proposition that decedent's contributory negligence will not be presumed at the outset of the proofs (even as the defendant's negligence) and that the defendant has the burden of proof on the issue.' The court held further:

'(I)t has no inherent probative force. Its effect is simply to require defendant to come forward with proof permitting a fair inference of decedent's negligence (unless proof of that purport appears on plaintiff's own case). When defendant discharges that duty the presumption disappears as an evidential factor and the plaintiff has only such evidence in his favor as the facts and circumstances reflected by the proofs may generate independent of the presumption. (citing cases). This is the standard Thayer rule ¹ which is the law of New Jersey. * * *' (at pp. 62--63, 196 A.2d p. 675).

In dealing with this subject Professor McCormick writes:

'In this view presumptions are simply rules directing the judge when to drop, or refuse to drop, the final curtain on the drama of the jury trial, and they are nothing more. They would thus not need to be mentioned in the court's charge at all. This is an attractive solution and seems to be advocated as a general practice by Chamberlayne, and by some modern opinions. Thus, Judge Learned Hand recently said: 'If the trial is properly conducted, the presumption will...