Latta v. Caulfield
| Decision Date | 15 March 1978 |
| Citation | 385 A.2d 910,158 N.J.Super. 151 |
| Parties | Martha LATTA, Plaintiff-Respondent, v. James T. CAULFIELD, Defendant-Appellant. |
| Court | New Jersey Superior Court — Appellate Division |
Michael T. Cooney, Elizabeth, for defendant-appellant (Hueston, Hueston & Sheehan, Elizabeth, attorneys; Robert T. Hueston, Elizabeth, of counsel).
Herbert J. Kessler, Westfield, for plaintiff-respondent (Berenson, Kessler & Woodruff, Westfield, attorneys; Lawrence A. Woodruff, Westfield, on the brief).
Before Judges FRITZ, BOTTER and ARD.
The opinion of the court was delivered by
FRITZ, P. J. A. D.
This is an appeal by the operator of an automobile from a judgment in favor of a pedestrian whom he struck, in an action in which the cause of action accrued prior to the enactment of our comparative negligence statute. See N.J.S.A. 2A:15-5.1 et seq. The principal concern of appellant, defendant below, involves a portion of the judge's charge focussing on proximate cause and exculpation of plaintiff's contributory negligence by defendant's subsequent negligent conduct. He characterizes this charge as an inaccurate and incomplete statement of the law capable of misleading the jury and constituting reversible error. We agree.
Plaintiff testified that one early evening, after dark, she was sitting on her front porch when a fight among 20 to 25 "kids" broke out in front of her house and spilled over on to her porch. When her peace entreaties failed, she went into her home to call the police. Her granddaughter aborted this mission by advising that the police were already across the street. Apparently a police car was parked on the far side. Plaintiff, reporting that she was going "(t)owards the cop's car * * * to ask him to try and stop the kids," testified that before she started across the street, she She then described the accident, involving a car coming from her right as she crossed, thusly:
A Then just as I got halfway in the street or across the white line so I was going I made but three more steps, and then I saw this car and I throw up my hands. I thought maybe he was going to let me pass.
Q Did he let you pass?
A No, he didn't.
Q What happened?
A He hit me.
Q What part of the car hit you?
A The front.
Q Now, how far across the street had you gotten when the car hit you?
A I had gotten three or four feet across from the white line.
Q On the other side of the white line?
A Yes.
She said she was wearing a blue dress and a pink and yellow apron.
A portion of her earlier deposition was read. In it she stated that she had seen defendant's car just after she crossed the white line; that it was then on the other side of an intersection at which a traffic light was situated, and that she "thought he was going to give me a chance to cross, but after the light went off, he just kept coming."
Defendant testified that he stopped for a red light at this intersection. He stated that when the light turned green he proceeded slowly because "there seemed to be some kind of disturbance ahead of me." This was the police car and a group of people. " All he was able to observe with respect to the accident was related thusly:
Q What did you do?
A I just proceeded slowly until the point of impact.
Q Tell us what happened?
A As I said, I was proceeding slowly because of the disturbance there and I came upon the impact. That's about all I can remember of it.
Q Where was Mrs. Latta when you first saw her?
A In front of my car. Impact.
Q About how fast were you going at the moment of impact?
A Eight to ten miles an hour.
In its return of a verdict for plaintiff, the jury answered written interrogatories:
The portion of the charge to which defendant excepts and which we find sufficiently misleading to require reversal is as follows:
In this case even if you find that Mrs. Latta negligently placed herself in the position in the street exposed to danger, if her position was discoverable by a proper lookout on the part of Mr. Caulfield in time to have avoided the accident and he failed to use reasonable care in making a proper lookout, you may find that such failure by him was the sole proximate cause of the accident. If that is your finding, then even though both parties may have been negligent, your verdict would show that only Mr. Caulfield's negligence was the proximate cause of the accident.
We have had no doubt since Pangborn v. Central Railroad Co. of N. J., 18 N.J. 84, 112 A.2d 705 (1955) that negligence on the part of a plaintiff, i. e., failure to conduct himself according to the reasonable man standard, does not necessarily and inexorably doom that plaintiff to failure in the assertion of his action in negligence. We there learned that "(i)f the faulty act of the plaintiff simply presents the condition under which the injury was received, and was not in a legal sense, a contributory cause thereof, then the sole question will be whether, under the circumstances, and in the situation in which the injury was received, it was due to the defendant's negligence." 18 N.J. at 102, 112 A.2d at 714.
That which was elsewhere called and sometimes described as the "last clear chance" doctrine properly became only an application of the sound and time-honored principle of proximate cause.
But both Pangborn and our rejection elsewhere of the literal expression of "last clear chance," i. e., responsibility visited on the one last able to avoid the accident for that reason alone, Brennan v. Public Service Ry. Co., 106 N.J.L. 464, 466, 148 A. 775 (E.&A.1930), require an examination of plaintiff's conduct as well as that of defendant in this quest for answer to the proximate cause inquiry. As is noted in this respect in Pangborn, "the primary consideration is whether the faulty act of the plaintiff was so remote from the injury as not to be regarded, in a legal sense, as a cause of the accident, or whether the injury was proximately due to the plaintiff's negligence, as well as to the negligence of the defendant." 18 N.J. at 102, 112 A.2d at 714.
It is this inquiry into the position of plaintiff, vis-a-vis defendant's opportunity to avoid the accident at the...
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Latta v. Caulfield
...A.2d 496 Martha LATTA v. James T. CAULFIELD. Supreme Court of New Jersey. May 16, 1978. Petition for certification granted. (See 158 N.J.Super. 151, 385 A.2d 910) ...