Knapp v. Phillips Petroleum Co.

• Decision Date: 05 March 1973
• Citation: 123 N.J.Super. 26,301 A.2d 451
• Parties: Robert KNAPP, III, an infant, by his Guardlan ad Litem, Robert Knapp, Jr., et al., Plaintiffs-Respondents, v. PHILLIPS PETROLEUM COMPANY, a Delaware corporation, authorized to do business in New Jersey, Defendant-Appellant, and George R. Wissing, Defendant.
• Court: New Jersey Superior Court — Appellate Division

Page 26

123 N.J.Super. 26

301 A.2d 451

Robert KNAPP, III, an infant, by his Guardlan ad Litem, Robert Knapp, Jr., et al., Plaintiffs-Respondents, v. PHILLIPS PETROLEUM COMPANY, a Delaware corporation, authorized to do business in New Jersey, Defendant-Appellant, and George R. Wissing, Defendant.

Superior Court of New Jersey,

Appellate Division.

Argued Jan. 15, 1973.

Decided March 5, 1973.

Robert V. Carton, Asbury Park, for appellant (Carton, Nary, Witt & Arvanitis, Asbury Park, attorneys).

Thomas T. Warshaw, Red Bank, for respondents Knapp (Drazin, Warshaw, Auerbach & Rudnick, Red Bank, attorneys).

Michael D. Schottland, West Long Branch, for respondents Beal (Chamlin & Schottland, West Long Branch, attorneys).

Before Judges FRITZ, LYNCH and MARTINO.

The opinion of the court was delivered by

LYNCH, J.A.D.

Defendant Phillips Petroleum Company (Phillips) appeals from judgments against it pursuant to jury verdicts in favor of the several plaintiffs who were injured in an automobile accident which occurred on Route 34 in Madison Township on April 10, 1969. The verdicts were also against defendant Wissing. He does not appeal.

The accident occurred at a point in the roadway of Route 34 opposite the driveway of a gasoline service station owned by Phillips. Defendant Wissing was driving his car south on Route 34 when he observed what appeared to be a 'pot hole' in his lane (the lane nearest the center of the highway). Thinking his left front wheel might hit the hole, he swerved to his left to avoid it. It was raining and, as he turned, the front of his car went into the northbound lane, began to skid across the center line and was struck in the right side by a northbound car owned and operated by plaintiff Robert Knapp, Jr. Passengers in the Knapp vehicle were his wife June, his children Gayle, Coleen, Robert, III and Donna, and also plaintiffs George Beal and his wife Doris. All were injured, Donna Knapp dying as a result of the injuries she sustained. Damages were assessed as follows: George Beal, $5,000; Doris Beal, $20,000; Robert Knapp, Jr., $75,000; Gayle Knapp, $40,000; Coleen Knapp, $2,500; Robert Knapp, III, $1,000; June Knapp, $175,000. On the claim because of Donna Knapp's death, $20,000 was awarded, and for her pain and suffering the verdict was in the amount of $4,000.

The essence of plaintiffs' claim against Phillips was that the construction of the gas station, and particularly of a 'French' drain beneath the driveway thereof, did cause (as stated in Knapps' brief) 'a casting of waters in an increased amount onto or under the highway in such a manner as to create or cause the condition which ultimately created the hole in Highway 34, causing the subsequent series of events.' This conduct on the part of Phillips is said to have been a proximate cause of the accident.

Several experts, William Poznak for plaintiff, Wallace V. Smith and Russell H. Benjamin on behalf of defendants, were in substantial agreement as to the cause of the condition of Route 34 in the area in question. In general, they agreed that underground springs coming from the Phillips property weakened the subsurface of the road, contributing to the general breaking up of the highway in the area in question.

The differences among the experts, however, rested in their diverse opinions as to the functioning of the French drain and its relationship to the breaking up of the highway. Mr. Poznak, for plaintiffs, testified that French drains are 'inefficient.' Asked what part the French drain in its location played in the 'breaking up underneath the roadway so this hole developed,' he answered that it tended to accumulate subsurface water and in this instance brought it closer to the highway and 'this proximity of the water being drawn down here would then go under the road.' Messrs. Benjamin and Smith, for defendants, while conceding that subsurface water coming from the Phillips property contributed to the breaking up of the highway, testified that the French drain was a proper and acceptable means of attempting to intercept the subsurface water, whereby less of such water reached the base of the highway than would have had the French drain not been built.

Defendant Phillips contends on appeal that (a) it had no legal duty which was violated; (b) 'the hole' in the road could not have been a proximate cause of the accident; (c) nothing that Phillips did or did not do, was a proximate cause of the hole; (d) the verdict of the jury was against the weight of the evidence and the result of bias, passion, prejudice and/or sympathy; (e) the court erred in its charge and in refusing defendant Phillips' request to charge; and (f) the verdicts were excessive.

The main thrust of Phillips' argument is that the court erred in denying its motions for involuntary dismissal, in denying its motions for judgment n.o.v. and for a new trial, and in submitting the issues to the jury.

On such motions the court must accept as true all the evidence which supports the position of the party defending against the motion and accord him the benefit of all inferences which can reasonably and legitimately be deduced therefrom. If reasonable minds could differ, the motion must be denied. Dolson v. Anastasia, 55 N.J. 2, 5, 258 A.2d 706 (1969); Bozza v. Vornado, 42 N.J. 355, 357--358, 200 A.2d 777 (1964); Bell v. Eastern Beef Co., 42 N.J. 126, 129, 199 A.2d 646 (1964); Franklin Discount Co. v. Ford, 27 N.J. 473, 490, 143 A.2d 161 (1958). Those inferences drawn are to be taken from established facts and may not be based upon a foundation of pure conjecture, speculation, surmise or guess. Velasco v. Goldman Builders, Inc., 93 N.J.Super. 123, 133, 225 A.2d 148 (App.Div.1966). The judicial function therefore is a mechanical one. The trial court is not concerned with the worth, nature or extent of the evidence, but only with its existence. Dolson, supra, 55 N.J. at 6, 258 A.2d 706. As the trial court is bound by these standards below, so too are we on appeal. Harr v. Allstate Insur. Co., 54 N.J. 287, 292, 255 A.2d 208 (1969).

Defendant contends that the hole which plaintiffs claimed was the one which caused defendant Wissing to swerve his car was not the particular hole identified by Wissing at trial. Phillips contends that no one saw that particular hole on the night of the accident, that it was only identified by police officer Boss on the day after the accident and after Wissing, while in the hospital, described its location to him. Defendant points out that the dimensions of the hole were those of a rectangle--two feet long, seven inches wide and six inches deep. Such regular dimensions, it is argued, are not those of a 'pot hole' caused by subsurface damaging influences, but rather was 'man-made.' It is further said that there was evidence that the hole which caused Wissing to swerve was a considerable distance north of the scene of the accident. However, Wissing, though at first showing some hesitation, did circle the hole on Exhibit PK13, identifying it as the hole which caused him to swerve. Officer Boss said that while it was rectangular in shape it was 'not a perfect rectangle.' Thus, defendant's arguments as to the identity of the offending hole create only issues of fact. They were for the jury to resolve. Apparently it did so, in favor of plaintiffs. And, since there was sufficient credible evidence to support the finding, we may not differ.

Defendant contends that the controlling legal doctrine as to subsurface waters is that of 'reasonable use,' as applied in Meeker v. East Orange, 77 N.J.L. 623, 638, 74 A. 379 (E. & A. 1909). We hold to the contrary. The 'reasonable use'...