Levine v. Scaglione

• Decision Date: 19 June 1967
• Docket Number: No. A--1109,A--1109
• Citation: 231 A.2d 229,95 N.J.Super. 338
• Parties: Sylvia LEVINE and Louis Levine, Plaintiffs-Appellants, v. Vincent SCAGLIONE, Defendant-Respondent.
• Court: New Jersey Superior Court — Appellate Division

Page 338

95 N.J.Super. 338

231 A.2d 229

Sylvia LEVINE and Louis Levine, Plaintiffs-Appellants, v. Vincent SCAGLIONE, Defendant-Respondent.

No. A--1109.

Superior Court of New Jersey

Appellate Division.

Argued May 29, 1967.

Decided June 19, 1967.

Jack Solomon, Newark, for appellants.

Edward E. Kuebler, Newark, for respondent.

Before Judges SULLIVAN, KOLOVSKY and CARTON.

The opinion of the court was delivered by

KOLOVSKY, J.A.D.

In this automobile negligence-pedestrian knock-down case, plaintiffs appeal from a judgment for defendant entered after a jury trial and from the trial court's denial of their motion for a new trial.

Plaintiffs urge three grounds for reversal. The most significant is the claim that the verdict was against the weight of the evidence and that the trial court erred in denying the motion for a new trial.

The only verdict returned by the jury was that 'the defendant (was) not guilty of negligence.' Our consideration is therefore limited to that finding. Kulbacki v. Sobchinsky, 38 N.J. 435, 452, 185 A.2d 835 (1962). We may not consider whether a general verdict of no cause for action would be immune from attack because of other issues in the case, including that of contributory negligence. There was no general verdict; the jurors ceased their deliberations, as the court's charge had expressly directed them to do, once they had decided that defendant was not negligent.

Applying the rationale of Kulbacki, supra, 38 N.J., at pp. 446--452, 185 A.2d 835, we have reviewed and considered the record and the trial court's reasons for denying a new trial. We conclude that under the proofs in this case, there was no reasonable justification for a finding that defendant was not negligent and that there has been 'a manifest denial of justice under the law' mandating a new trial.

Mrs. Levine testified that she was standing south of the center line of Prince Street when she was struck. That testimony is confirmed by the other relevant evidence in the case, the testimony of the policeman who measured the distances from the southerly side of Prince Street to Mrs. Levine's body, and the admissions made by defendant in his testimony and in his answers to interrogatories. From that evidence it appears that defendant's westbound automobile was over the center line of Prince Street when, as defendant says, 'the side of (its) left front fender' came in contact with Mrs. Levine.

Defendant testified that he was driving in a westerly direction on Prince Street intending to make a left turn into Morris Avenue. Morris Avenue runs in a southwesterly direction beginning at a point in Prince Street a short distance west of the point of impact. Defendant did not see Mrs. Levine at any time before the accident; the first time he saw her she was 'sliding to the street at a point immediately next to the left side of my car near the windshield.'

Defendant described what happened as follows:

'I was going along keeping to my right and then all of a sudden the reflection of the sun hit my eyes and I was blinded momentarily. After I regained my vision, I heard a noise and I applied my brakes and I stopped as I looked out I see Mrs. Levine laying on the floor.'

By his own testimony defendant, when blinded by the sun, did nothing either by way of applying his brakes or lowering his sun visor. He continued driving until he regained his vision and heard the noise of impact; then for the first time he applied his brakes.

Defendant's conduct was incompatible with the jury's finding that he was not negligent. 'No man is entitled to operate an automobile through 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 a driver in the predicament in which defendant found himself take action immediately to restore his vision, and if that requires that he slow down or come to a stop, that he do so instead of proceeding on-ward as if nothing untoward had happened. Hammond v. Morrison, supra; Osbun v. De Young, 99 N.J.L. 204, 208, 122 A. 809 (E. & A. 1923); State v. Kellow, 136 N.J.L. 1, 5, 53 A.2d 796 (Sup.Ct.1947); Barth v. Reichert, 34 Ill.App.2d 472, 181 N.E.2d 609 (App.Ct.1962); Annotation, 'Automobiles--Blinding Lights,' 22 A.L.R.2d 292, 408 (1952).

Indeed, defendant's admitted familiarity with Prince Street, which he travelled twice a day to and from work, should have impelled him some distance before he reached the scene of the accident to lower his sun visor to shade his eyes against the setting sun which faced him as he proceeded in a westerly direction.

The suggestion by the trial judge in his ruling denying the motion for a new trial that the jury could have determined that defendant did not have 'time to stop after he was blinded' finds no support in the record. More meaningful is defendant's admission that he made no effort to stop or slow down and kept on driving although blinded.

It may be noted that the court's charge merely defined negligence generally. Plaintiff did not request a charge as to the duty of a driver temporarily blinded by the sun, and the charge as given made no reference thereto.

We treat next the other two grounds of appeal argued by plaintiffs since the same questions will undoubtedly arise at the new trial. The court did not err in submitting the issue of contributory negligence to the jury. Under the proofs in this case

'Fair-minded men of ordinary prudence might well differ * * * as to whether plaintiff acted as an ordinarily prudent man would act. It follows that the issue of contributory negligence was not one of law for determination by the court but rather one of fact for determination by the jury.' Kopec v. Kakowski, 34 N.J. 243, 247, 168 A.2d 23, 26 (1961).

The final ground of appeal relates to the admission of testimony describing defendant's unsuccessful efforts to obtain a physical examination of plaintiff prior to the institution of suit.

Although the accident took place on April 3, 1962, the complaint herein was not filed until almost two years later, on March 12, 1964. Plaintiff had, however, consulted Mr. Solomon, her present attorney, within days after the accident.

Mr. Barber, an investigator for defendant's insurance carrier, testified that he telephoned...