Melone v. Jersey Cent. Power & Light Co.

• Decision Date: 28 March 1955
• Docket Number: Nos. A--20,A--73,s. A--20
• Citation: 18 N.J. 163,113 A.2d 13
• Parties: Sylvester P. MELONE, Plaintiff-Respondent, v. JERSEY CENTRAL POWER & LIGHT CO., a corporation of New Jersey and Edward J. Walling, Defendants-Appellants. Sylvester P. MELONE, Plaintiff-Respondent, v. Leo J. TEARS, Defendant-Appellant.
• Court: New Jersey Supreme Court

Page 163

18 N.J. 163

113 A.2d 13

Sylvester P. MELONE, Plaintiff-Respondent, v. JERSEY CENTRAL POWER & LIGHT CO., a corporation of New

Jersey and Edward J. Walling, Defendants-Appellants.

Sylvester P. MELONE, Plaintiff-Respondent, v. Leo J. TEARS, Defendant-Appellant.

Nos. A--20, A--73.

Supreme Court of New Jersey.

Argued Feb. 21 and 28, 1955.

Decided March 28, 1955.

Mark Townsend, Jersey City, argued the cause for the defendants-appellants Jersey Central Power & Light Co. and Edward J. Walling (Thomas F. Doyle, Jersey City, of counsel; Townsend & Doyle, Jersey City, attorneys).

William J. O'Hagan, Asbury Park, argued the cause for the defendant-appellant Leo J. Tears (Reid & Flaherty, East Orange, attorneys).

Abraham Frankel, Asbury Park, argued the cause for the plaintiff-respondent (Frankel & Frankel, Asbury Park, attorneys).

The opinion of the court was delivered by

BURLING, J.

These appeals arise from a civil action sounding in tort, grounded in the alleged actionable negligence of the defendants Jersey Central Power & Light Co., a corporation of the State of New Jersey, and its employee truck driver, Edward J. Walling (hereinafter referred to as Jersey Central and Walling), in respect of the operation of a maintenance truck, and the alleged actionable negligence of the defendant Leo J. Tears (hereinafter referred to as Tears), in respect of the operation of an automobile of the private passenger-carrying category. The plaintiff Sylvester P. Melone (hereinafter called Melone) was a passenger in Tears' automobile at a time when it collided with Jersey Central's truck. Melone instituted the action in the Superior Court, Law Division, against the three defendants hereinbefore named. A jury rendered verdicts in favor of Melone and against all three defendants, and assessed damages in the sum of $15,000. Judgment was entered on the verdict. The defendants' motions for new trial were denied and they appealed to the Superior Court, Appellate Division. The judgment was affirmed by the Superior Court, Appellate Division, unanimously as to Tears and by a divided vote as to Jersey Central and Walling. Melone v. Jersey Central Power & Light Co., 30 N.J.Super. 95, 103 A.2d 615 (App.Div.1954). Jersey Central and Walling appealed to this court under N.J Const.1947, Art. VI, Sec. V, par. 1, clause (b). Cf. R.R. 1:2--1(b). Tears petitioned for certification, which we allowed. Melone v. Tears, 16 N.J. 195, 107 A.2d 835 (1954).

There is no dispute as to the fact of collision. In this respect the undisputed facts are that the collision occurred about 4:00 A.M. on Sunday morning, August 31, 1952 (during the Labor Day week-end). It was dark and rainy (although there is dispute as to whether the precipitation was light or heavy). The site of the collision was an intersection of State Highway Route 36 and Broad Street, in the Borough of Keyport, New Jersey, about 32 miles from Jersey City.

Automatic traffic signals, overhead lights of the red-amber-green variety, existed at this intersection, and in addition the intersection was illuminated by two overhead arc lights. State Highway Route 36 at this location was 44 feet wide from curb to curb and consisted of a northbound and a southbound traffic lane of concrete paving, each ten feet wide, the two traffic lanes being separated by a painted white line, and each lane flanked on the curb side by a macadam strip 12 feet in width.

The truck involved was a heavy-duty line repair truck, weighing between four and five tons, to which would be added its load. Walling, the driver, had stopped the truck in the northbound traffic lane on Route 36 at the intersection in obedience to the traffic signal. When he attempted to resume forward motion the motor of the vehicle stalled, apparently as a result of overheating.

Tears' vehicle was a passenger-type automobile (a sedan of the model year 1947). The collision which occurred was of the 'rear end' variety--Tears was operating his vehicle in the northbound traffic lane of Route 36 when it came in contact with the rear of the stopped truck. Melone was a passenger in Tears' vehicle.

Both vehicles were damaged by the impact and Tears and Melone sustained personal injuries. In addition to Melone's action against the three defendants, there was an independent action by Tears against Jersey Central and Walling. The Tears action resulted in a verdict and judgment for the defendants therein, which Tears did not appeal.

The present appeals stem from the Melone action. We hereinafter treat the two appeals separately.

I. The Jersey Central-Walling Appeal.

The questions involved in the appeal of Jersey Central and Walling are whether the Superior Court, Appellate Division, erred in affirming the denial by the Superior Court, Law Division, of the Jersey Central and Walling motions (a) to dismiss Melone's action at the close of the plaintiff's case; (b) to enter judgment for Jersey Central and Walling at the close of the reception of all the evidence; and (c) for a new trial, on the ground that the verdict of the jury was against the weight of the evidence.

A motion for judgment of dismissal admits the truth of the plaintiff's evidence and every inference of fact that can be legitimately drawn therefrom which is favorable to the plaintiff and denies only its sufficiency in law. And on a motion for judgment the trial court cannot weigh the evidence but must accept as true all evidence which supports the view of the party against whom the motion is made and must give him the benefit of all legitimate inferences which are to be drawn therefrom in his favor. These are settled juridical concepts. And it is equally well established that a jury verdict is not to be set aside as against the weight of the evidence unless it clearly and convincingly appears that the verdict was the result of mistake, partiality, prejudice or passion. Cf. R.R. 1:5--3(a), as amended June 28, 1954, effective September 8, 1954.

There is no dispute as to the duty of reasonable care owed by Jersey Central and Walling to Melone. The contention of defendants Jersey Central and Walling is that Melone produced no evidence of negligence on their part, nor evidence that any action or inaction of theirs proximately caused the collision with its resultant injuries to Melone. Their emphasis on this appeal is placed upon Tears' alleged negligence.

If there was evidence of negligence attributable to the defendants Jersey Central and Walling which proximately caused the event, although coupled with negligence of Tears, then the defendants Jersey Central and Walling are liable to Melone. The applicable rule was quoted by Mr. Justice Wachenfeld from Matthews v. Delaware, L. & W.R. Co., 56 N.J.L. 34, 27 A. 919, 22 L.R.A. 261 (Sup.Ct.1893), in Ristan v. Frantzen, 14 N.J. 455, 460, 102 A.2d 614, 616 (1954) as follows:

"* * * But when each of two or more persons owes to another a separate duty, which each wrongfully neglects to perform, then, although the duties were diverse and disconnected, and the negligence of each was without concert, if such several neglects concurred and united together in causing injury, the tort is equally joint, and the tortfeasors are subject to a like liability."

As we shall demonstrate, there was evidence of negligence attributable to Tears. We find that there was also evidence from which negligence on part of the defendants, Jersey Central and Walling, could be inferred.

There was evidence, although slight and disputed by the defendants, that the truck could have been removed from the traveled surface of the highway. There was evidence that this was not attempted. Negligence may consist of inaction. Bohn v. Hudson & Manhattan R. Co., 16 N.J. 180, 186, 108 A.2d 5 (1954). And it may be observed that negligence may result from conduct 'which 'creates a situation which involves an unreasonable risk to another because of the expectable action of the other * * *. " See Brody v. Albert Lifson & Sons, 17 N.J. 383, 389, 111 A.2d 504, 507 (1955).

There was evidence that the intersection at which the truck had stopped was illuminated by overhead arc lights, but the atmospheric conditions and time of day combined to produce a dark night, with rain; a dispute of fact as to the extent of the rain, and consequent reduction of visibility, existed. There was a dispute in the evidence as to whether the truck itself was illuminated, although the evidence demonstrates that it was carrying red reflectors and a white sign observable by persons approaching it from the rear. There was testimony that it carried one taillight located under the tailboard on the left side. There was evidence that an employee of the corporate defendant used a white 'spot' light or flash-light to signal vehicles approaching the truck from the rear, including Tears' vehicle. There was contradictory testimony as to the scope of this effort to warn motorists, including Tears. There was also evidence that the truck was equipped with radio communication equipment and that no attempt was made to use it to obtain assistance.

In addition there was evidence that the truck crew set out no flares although it had four or five minutes in which to do so. The truck crew had no flares on hand, the crew having left its three flares at a work location in Keansburg, the last point of work before it proceeded to the scene where the collision occurred.

In this respect the trial court instructed the jury in the language of R.S. 39:3--64, as amended by L.1947, c. 82, sec. 1, N.J.S.A., relative to emergency warning light equipment. R.S. 39:3--64, as amended, N.J.S.A., supra, required commercial motor vehicles weighing over 5,000 pounds (the evidence places the truck owned by the corporate defendant in this category) to carry 'ready for immediate use * * * at least three portable flares, electric lanterns, red reflector emergency warning devices, or other devices each capable of producing a warning visible from a...