Maccia v. Tynes, A--553

• Decision Date: 30 January 1956
• Docket Number: No. A--553,A--553
• Parties: Frank MACCIA, an Infant by Victor Maccia, his Guardian ad Litem, and Victor Maccia, Individually, Plaintiffs-Appellants, v. Charles TYNES, t/a Charles Cleaners & Dyers, and William G. Mayo, Defendants-Respondents. . Appellate Division
• Court: New Jersey Superior Court — Appellate Division

Page 1

39 N.J.Super. 1

120 A.2d 263

Frank MACCIA, an Infant by Victor Maccia, his Guardian ad Litem, and Victor Maccia, Individually Plaintiffs-Appellants, v. Charles TYNES, t/a Charles Cleaners & Dyers, and William G Mayo, Defendants-Respondents.

No. A--553.

Superior Court of New Jersey Appellate Division.

Argued Jan. 9, 1956.

Decided Jan. 30, 1956.

Ralph G. Mesce, Newark, for plaintiffs-appellants (Americus S. Muti, Newark, attorney).

Melvin B. Cohen, Newark, for defendants-respondents (Lowenstein & Cohen, Newark, attorneys).

Before Judges CLAPP, JAYNE and FRANCIS.

The opinion of the court was delivered by

CLAPP, S.J.A.D.

This is an action arising out of an auto accident. The jury returned a verdict of no cause of action, and plaintiffs appeal. The adult plaintiff was driving an auto west on Central Avenue, East Orange, and his three-year-old son, the other plaintiff, was a passenger. At the time of the accident he was making a left turn into Sanford Avenue when his car was struck by defendants' vehicle which was going east on Central Avenue. The traffic signals at that corner were green, authorizing Central Avenue traffic to proceed.

The three questions raised by plaintiffs on the appeal all relate to the trial court's charge, although none of them were brought to the court's attention at the trial. First, plaintiffs attack that portion of the charge italicized below:

'If you find he himself (the adult plaintiff) by his own course of conduct caused or contributed proximately to the accident he can have no recovery, Nor can the infant for whom he sues.'

Where a parent is driving a car in which his child is a passenger, the parent's contributory negligence cannot be imputed to the child, merely because of the relationship of parent and child or that of driver and passenger. Newman v. Phillipsburg Horse Car R. Co., 52 N.J.L. 446, 19 A. 1102, 8 L.R.A. 842 (Sup.Ct.1890); Gorman v. Mainzer, 149 A. 122, 8 N.J.Misc. 150, 153 (Sup.Ct.1930); Hedges v. McManus, 159 A. 87, 10 N.J.Misc. 336, 342 (Sup.Ct.1932); Prosser, Torts, (2d ed.), § 54; Restatement of Torts, §§ 488, 490. While we know little more as to the facts beyond that related above, still it was, in effect, conceded on the argument that the case presents no special circumstances to take it out of this rule.

We conclude that the italicized words in the charge constitute plain error of so serious a nature that we should notice it even though it was not brought to the attention of the trial court (see R.R. 1:5--3(c), modifying the third sentence in R.R. 4:52--1) and even though the amount of the child's claim may not be large.

Second, plaintiffs attack the words, italicized below, appearing in another portion of the charge:

'If you find that the plaintiff was guilty of contributory negligence In any fashion, no matter how slight or to what degree, which directly contributed to the happening of the accident, then I charge you to bring in a verdict of no cause of action * * *.' (Italics added.)

It is, of course, elementary that a plaintiff's contributory negligence will not operate as a bar to his claim unless there is a certain causal relationship between it and the accident. We have held that an instruction is inadequate which makes no reference to this matter of causation, except to say that the plaintiff is barred if his negligence contributed 'in any degree' or 'in any way' to the accident. Pignatore v. Public Service Coordinated Transport, 26 N.J.Super. 234, 239, 97 A.2d 690 (App.Div.1953); Annotation, 102 A.L.R. 411, 423; cf. Restatement of Torts, §§ 462, 465; but see Snyder v. Bicking, 115 N.J.L. 549, 550, 551, 181 A. 161, 102 A.L.R. 409 (E. & A.1935). In this respect the sufficiency of the present charge (see the portion first quoted in this opinion, insofar as it deals with the adult plaintiff) has not been dealt with by counsel. However, we need not pursue the matter, for obviously there is no error here so serious as to require us to take notice of it in the absence of an objection thereto in the court below.

We might add that in any case where this matter of causation is sufficiently covered by the charge, it is quite proper for the court also to instruct the jury that the plaintiff is barred if his negligence contributed 'in any degree' to the accident. For as the law now stands, it is entirely settled that plaintiff's negligence will preclude recovery notwithstanding that it is lesser in degree than defendant's negligence; for example, the plaintiff may not recover even though his negligence is slight while defendant's negligence is ordinary or gross, or even though it is ordinary while defendant's negligence is gross. New Jersey Express Co. v. Nichols, 33 N.J.L. 434, 439 (E. & A.1867); Pennsylvania R. Co. v. Righter, 42 N.J.L. 180, 183 (E. & A.1880); Menger v. Laur, 55 N.J.L. 205, 210, 215, 26 A. 180, 20 L.R.A. 61 (Sup.Ct.1893); Conkling v. Erie R. Co., 63 N.J.L. 338, 341, 43 A. 666 (E. & A.1899); George Siegler Co. v. Norton, 8 N.J. 374, 384, 86 A.2d 8 (1952); Battaglia v. Norton, 16 N.J. 171, 177, 108 A.2d 1 (1954); Annotation, 114 A.L.R. 830 (1938); Prosser, Torts, (2d ed.), § 53; compare 1956 Assembly No. 103 relating to comparative negligence.

Third, plaintiffs attack the italicized words in the following portion of the charge:

'Now ordinarily all a plaintiff has to do is use reasonable care. In situations of this kind, turning left against oncoming traffic, one Must seek an opportune time and use Great care in the process.' (Italics added.)

It has been held that a driver making a left turn at a corner must seek an opportune time and use great or high care, if traffic at the corner is not governed by traffic control signals or by a traffic or police officer; but if it is so governed, the effect of N.J.S.A. 39:4--115 is such that the person making a left turn is under a duty merely to use proper care to avoid accidents. Politi v. Pennsylvania Greyhound Lines, Inc., 5 N.J.Super. 364, 367, 69 A.2d 210 (App.Div.1949); Tate v. Costa, 29 N.J.Super. 527, 532, 103 A.2d 16 (App.Div.1954); cf. N.J.S.A. 39:4--126 declaring that no person shall turn a vehicle or start or back it 'unless and until such movement can be made with safety.' It may be observed that traffic lights are some indication of the busyness of the intersection.

Judge Jayne, speaking for the Appellate Division in Pignatore v. Public Service Coordinated Transport, 26 N.J.Super. 234, 239, 97 A.2d 690 (App.Div.1953), supra, has said that the term 'reasonable care' is sufficiently flexible to accommodate itself to various degrees of risk, and that it may be more practicable not to attempt (certainly as a general thing) to pigeonhole innumerable situations, each with a train of variations, as requiring great care, ordinary care or slight care, as the case may be. The standard of reasonable care Under the circumstances need not vary; however it is obvious that a greater danger or a greater responsibility will constitute a circumstance which, within the very terms of the standard, may call for a greater quantum of care. Prosser, Torts (2d ed.), § 33; Restatement of Torts § 298a; cf. New Jersey Fidelity & Plate Glass Ins. Co. v. Lehigh Val. R., 92 N.J.L. 467, 470, 105 A. 206 (E. & A.1918).

If from a multitude of possible circumstances we single out one of them as requiring us to pigeonhole the case under one of the three standards, the jury may be induced to overlook other, perhaps more important circumstances. The case at hand points this up. For the degree of care required of a driver making a left turn at a corner depends more on the quantity of traffic he must cut across, and less on whether traffic lights are located on the corner.

In our view--whether or not there are traffic signals--a proper instruction with respect to the making of a left turn need merely refer to the standard of reasonable care. However, where a left turn is made in front of or through the course of oncoming vehicles, it may be most appropriate for the court in its charge to instruct the jury in particular as to the caution required in making such a turn. Cf. Pignatore v. Public Service Coordinated Transport, 26 N.J.Super. 234, 238, 97 A.2d 690 (App.Div.1953).

Furthermore, under certain circumstances it may be appropriate to instruct the jury that the exercise of reasonable care may require the driver to await an opportune time before making the left turn. Felix v. Adelman, 113 N.J.L. 445, 448, 174 A. 565 (E. & A.1934). But under other circumstances such an instruction may not be suitable, as, where the turn is authorized by a policeman or traffic officer. It will be observed that the case last cited left open the question whether the term 'great care' should be employed in a charge with respect to a left turn; cf. Wassmer v. Public Service Electric & Gas Co., 122 N.J.L. 367, 371, 5 A.2d 762 (E. & A.1939).

As above stated, we think a proper instruction as to the matter of a left turn need merely refer to the standard of reasonable care. However, the question whether prejudicial error is committed when a trial judge lays down a standard of 'great care' is another matter. We need not consider that question here; it will turn on the circumstances of the case. Suffice it here to hold that the injection of the term 'great care' in the instruction before us does not constitute plain error of so serious a nature as to require us to notice it, even though it was not brought to the attention of the trial court.

The only error cognizable here, therefore, is that portion of the court's instructions referred to in the first point above stated, namely, that which charges the infant plaintiff with his father's negligence. This point (indeed all three of the above points) goes to the issue of contributory negligence. Defendants argue that the general verdict of the jury in their favor must be taken as a finding for them not only on the issue of contributory negligence, but also on the issue of...