Liberatori v. Yellow Cab Co. of Philadelphia

• Decision Date: 24 May 1955
• Docket Number: No. A--195,A--195
• Citation: 114 A.2d 469,35 N.J.Super. 470
• Parties: Josephine LIBERATORI et al., Plaintiffs-Respondents, and Cross-Appellants, v. YELLOW CAB COMPANY OF PHILADELPHIA, a corporation, and Charles Kelley, Defendants-Appellants, and William Liberatori, Defendant-Respondent. . Appellate Division
• Court: New Jersey Superior Court — Appellate Division

Page 470

35 N.J.Super. 470

114 A.2d 469

Josephine LIBERATORI et al., Plaintiffs-Respondents, and Cross-Appellants, v. YELLOW CAB COMPANY OF PHILADELPHIA, a corporation, and Charles Kelley, Defendants-Appellants, and William Liberatori, Defendant-Respondent.

No. A--195.

Superior Court of New Jersey.

Appellate Division.

Argued May 9, 1955.

Decided May 24, 1955.

Meyer L. Sakin, Camden, argued the cause for the defendants-appellants, Yellow Cab Co. of Philadelphia and Charles Kelley.

Carl Kisselman, Camden, argued the cause for the plaintiffs-respondents and cross-appellants (Joseph Asbell, Camden, attorney).

H. Hurlburt Tomlin, Camden, argued the cause for the defendant-respondent William Liberatori (Orlando, Devine & Tomlin, Camden, attorneys).

Before Judges GOLDMANN, FREUND, and CONFORD.

The opinion of the court was delivered by

FREUND, J.A.D.

The plaintiffs, Josephine Liberatori, her daughter Stella Matthews and her son James Liberatori, were all passengers in an automobile operated by another son, William Liberatori, one of the defendants. On a clear night they were travelling along the White Horse Pike from their home in Philadelphia to Sicklerville, New Jersey. As they reached Lawnside, New Jersey, William realized that they had forgotten his mother's medicine, and he decided to return to Philadelphia for it. Thereupon, he made a left-hand turn off the highway into the open driveway of a cemetery. According to the brothers' testimony, William then backed his car out of the driveway at a right angle. Both testified that as the car reached the road edge, the visibility was good and they made an observation of the road. James testified that it was clear for about 200 yards. William testified that when the car had been backed to where the right rear wheel was slightly on the shoulder and the left rear wheel was on the highway edge, he saw a pair of headlights approaching, and he stopped to allow the vehicle to pass. About five to seven seconds later, his car was hit in the right rear by a taxicab owned by the defendant, Yellow Cab Company, and operated by its employee, Charles Kelley.

Kelly testified that after having delivered a passenger he was driving north along the White Horse Pike at about 35 miles per hour; for some distance he had been following a car about 75 feet ahead of him; as he approached the cemetery 'it wasn't too well lit,' and there were no lights or markers indicating a driveway leading onto the highway. Further, that when he was about 20 feet from the driveway he noticed a shadow which he was unable to identify, and before he could apply his brakes, he felt an impact on the right side of the taxi.

A resident of a house directly across the highway from the driveway testified that the rear lights of the defendant Liberatori's car were not lighted as he backed out of the driveway. Another resident of the area testified that after the accident William said that he had looked and had not seen any car, and 'didn't know where the hell it came from.'

The passengers in the Liberatori car instituted this action against William Liberatori, the Yellow Cab Company, and its driver, Charles Kelley. The Cab Company cross-claimed against William Liberatori for damages to its cab. William Liberatori cross-claimed against the defendants, Yellow Cab Company, and Charles Kelley for property damage and personal injuries. The jury returned a verdict against the Cab Company and Charles Kelley in favor of the plaintiff--Josephine for $10,510.50, James for $745 and Stella for $5,213.25. A verdict of no cause of action in favor of the defendant William and against the plaintiffs was returned, as well as a verdict of $744.25 in his favor on his cross-claim against the defendants Yellow Cab Company and Charles Kelley.

The defendants Yellow Cab Company and Kelley moved for a new trial, which was denied. The Cab Company and Kelley appeal from the judgments against them, and the plaintiffs appeal from the dismissal of their claim against William Liberatori.

Appeal is on a number of grounds; they will be disposed of as argued in the appellants' brief.

The defendants contend that the trial court erred in refusing to grant its motion to dismiss at the completion of the plaintiffs' opening statement to the jury, on the ground that it was devoid of any factual outline of how, when or where the accident occurred. Alexander v. Manza, 132 N.J.L. 374, 40 A.2d 775 (E. & A.1945). The plaintiffs admit that their opening statement might have been more artfully constructed.

The law is settled that a summary disposition on the plaintiffs' opening should not be employed unless the facts are undisputed and the law involved is not in doubt. Ross v. Orr, 3 N.J. 277, 69 A.2d 730 (1949); Sole v. Clifton Colonial Gardens, Inc., 14 N.J.Super. 575, 82 A.2d 633 (App.Div. 1951); Okker v. Chrome Furniture Mfg. Corp., 26 N.J.Super. 295, 97 A.2d 699 (App.Div.1953). Assuming, but not conceding, that the court did err in denying the defendants' motion for non-suit, this alleged error was cured by evidence subsequently adduced at the trial which raised sufficient factual issues to be submitted to the jury. It has been held:

'As to a refusal to nonsuit on the opening, we do not wish to be understood as subscribing to the proposition that, if the opening fails to state facts constituting the cause of action set up in the complaint, the court is irretrievably in error for refusing to nonsuit. The rule is settled, in cases where nonsuit was wrongly denied on the plaintiff resting his case, that, if facts supporting the cause of action are elicited thereafter, the error is cured. By analogy, if would seem that a similar rule should apply in cases of a deficient opening and refusal to nonsuit on that opening.' Glass v. American Stores Co., Inc., 110 N.J.L. 152, 164 A. 305, 306 (E. & A.1933).

See also Hahn v. Rockingham Riding Stables, 126 N.J.L. 324, 19 A.2d 191 (E. & A.1941).

The defendants argue that the court's charge was erroneous and prejudicial in that while it charged the language of N.J.S.A. 39:4--126 and N.J.S.A. 39:4--66.1, it failed to adequately charge the legal obligation owed by the defendant Liberatori to other cars on the highway as he backed out of the driveway, and that it should have charged that Liberatori was required to use 'great care' or 'a high degree of care,' or 'a degree of care commensurate with the risk of danger.'

Our courts have required a driver to use a 'high degree of care' only when making a left turn at an intersection in the face of oncoming traffic. The 'high degree of care' rule is regarded as an exception to the general rule of the duty of reasonable care required of the driver of an automobile. Senofsky v. Frecker, 159 A. 797, 10 N.J.Misc. 505 (Sup.Ct.1932); Anderson v. Cassidy, 119 N.J.L. 331, 196 A. 653 (Sup.Ct.1938); Motorlease Corp. v. Mulroony, 13 N.J.Super. 556, 81 A.2d 25 (App.Div.1951), affirmed 9 N.J. 82, 86 A.2d 765 (1952).

The record before us indicates that the defendants' exception to the court's charge did not include an objection to the court's failure to charge a 'high degree of care.' Even if the exception had been so particularized, it would be without merit, for a charge of a 'high degree of care' is not required on the facts of the instant case.

The court's charge on the question of duty as it relates to the facts and issues raised by the pleadings and testimony was proper. The charge instructed the jury as to a driver's obligation under the traffic law; as requested to be charged by the defendants it in substance contained the language of the applicable statute, that a driver of a vehicle entering a highway from a private road or driveway must yield the right of way to all approaching vehicles and that no person shall back up a vehicle unless such movement can be made in safety. The jury was correctly informed that it was for them to determine as a fact whether the driver had committed any act prohibited by the statute. This part of the charge was a clear and proper recital of the necessary rules of law and devoid of reversible error.

The defendant contend that the trial court's charge was erroneous in disallowing as to negligence the jury's use of evidence of William Liberatori's plea of guilty to a careless driving charge at a magistrate's hearing. The court charged as follows:

'* * * the question of negligence or non-negligence of William Liberatori is not dependent on whether or not he pleaded guilty to a motor vehicle charge, but rather the entire testimony was permitted * * * to permit you to decide the...