Miller v. Trans Oil Co.

• Court: New Jersey Supreme Court
• Writing for the Court: WACHENFELD
• Citation: Miller v. Trans Oil Co., 113 A.2d 777, 18 N.J. 407 (N.J. 1955)
• Decision Date: 09 May 1955
• Docket Number: No. A--134,A--134
• Parties: Calvin MILLER, Plaintiff-Appellant, v. TRANS OIL CO., a corporation, and Joseph Szabo, Defendants-Respondents, and Charles Szabo, Defendant.

Page 407

18 N.J. 407

113 A.2d 777

Calvin MILLER, Plaintiff-Appellant, v. TRANS OIL CO., a corporation, and Joseph Szabo, Defendants-Respondents and Charles Szabo, Defendant.

No. A--134.

Supreme Court of New Jersey.

Argued April 18, 1955.

Decided May 9, 1955.

Francis M. Seaman, Perth Amboy, argued the cause for appellant (Sam Weiss, Perth Amboy, on the brief).

Charles A. Rooney, Jersey City, argued the cause for respondents.

The opinion of the court was delivered by

WACHENFELD, J.

The appellant was seriously injured and his automobile which he was driving suffered extensive damage when it collided on Route 25 in Woodbridge with the rear of a trailer owned by Trans Oil Company which was attached to a tractor owned by Charles Szabo and driven by Joseph Szabo on the business of Trans Oil Company.

In the action the appellant brought to recover for his injuries and damage, the defendant Trans Oil Company counterclaimed, asserting his negligence was the proximate cause of the accident.

The jury returned a verdict of no cause of action on both the complaint and counterclaim, and the appellant appealed to the Appellate Division, where the judgment was affirmed. Miller v. Trans Oil Co., 33 N.J.Super. 53, 109 A.2d 427 (1954).

The appellant's petition for certification was granted upon his application. Miller v. Trans Oil Co., 17 N.J. 395, 111 A.2d 451 (1955).

The issue before us is limited to the query whether or not error was committed below in admitting the testimony of a witness that at about three-quarters of a mile before the scene of the accident a black sedan going at a fast rate of speed passed him and cut him off.

A resume of the pertinent testimony indicates that on the day in question, September 19, 1951, at about 9:30 P.M., the appellant was driving his car in Woodridge, New Jersey, going in the direction of Newark on Route 25. He was traveling in the slow lane near the right edge of the highway at a speed of between 40 and 45 miles an hour.

Route 25 in this vicinity is a dual highway going north and south, with a safety isle in the center. There are two lanes for northbound and two lanes for southbound traffic. The paved portion of the roadway for northbound traffic from the right edge of the road to the edge of the safety isle is about 24 feet wide, the isle being about 10 feet wide.

The appellant testified he came upon the tractor-trailer, which was traveling 30 to 35 miles an hour, and deciding to pass it, he blinked his lights, blew his horn, increased his speed to about 50 or 55 miles an hour, and pulled to the left side of the road. Suddenly, without warning, the tractor swerved to the left into the fast lane and gave no signal or warning of any kind of its intention to do so. The left front of the appellant's car struck the right rear of the trailer.

The appellant called as one of his witnesses one Richard Hollyer, who had also been subpoenaed by the defendants. He testified that when he came upon the scene of the accident, the appellant was still in his car. The tractor was in the island facing west, and the trailer was facing northwest. The right rear of the trailer was at about the center of the highway.

On cross-examination, the witness was asked: 'Did a black sedan, going at a terrific rate of speed, pass you just before you reached the scene of this accident?' There was an objection entered because the question did not constitute 'proper cross examination.' The court agreed with the suggestion made and the witness was subsequently recalled on behalf of the defendant. A like question was then submitted to him: 'Mr. Hollyer, did the black sedan automobile pass you, going in your direction, within three-quarters of a mile of the scene of this accident?' The question was objected to 'unless it can be definitely stated that the sedan in question was the sedan of Calvin Miller,' and secondly, upon the ground that the passing of any automobile three-quarters of a mile from the scene of the collision was too remote.

The court, commencing upon the fact that counsel for the plaintiff would have an opportunity to cross-examine the witness, allowed the question and the witness answered: 'Yes, a black car did pass me.' The witness was then asked: 'Will you describe, if you will please, the course and the speed of that car? A. Well I was traveling about 45, and this car passed me at quite a bit faster and cut directly in front of me, and cut me off the road.'

Asked how the car looked or compared with respect to the appellant's car, the witness answered: 'It was a black sedan, or a black, closed car. It was similar.'

The witness then testified that he continued approximately three quarters of a mile and came upon the scene of the accident. When asked if there were any other black cars going in the direction in which the witness was proceeding between his car and the scene of the accident, he answered he did not know, he 'didn't notice.' He was then asked:

'Why then, sir, did you go over and give the truck driver your name?' To which he answered: 'I thought it was the same car that had cut me off down the road.'

On cross-examination, the following occurred:

'Now, Mr. Hollyer, the car that you say that cut you off was a black, closed automobile, wasn't it? A. That is right.

'Q. Do you know the make of the automobile that passed you? A. I do not.

'Q. You also said that you don't remember, or don't recall whether any other black cars passed you after that incident that you spoke of? A. I do not, sir.

'Q. You don't know. Mr. Hollyer, can you say, under oath, that the car which passed you, and which you claim forced you off the highway, was the Calvin Miller automobile? A. No, sir.'

These are the salient circumstances which frame the issue presently before us for decision, and it will be noted that the import of the witness' version varied, as it often does, depending upon the manner and method of inquiry.

The appellant in his brief with dramatic emphasis says the bell tolled by the jury did not have a clear sound. It was muffled by a palpable impediment in the purity of tone, and the fact that an unidentified black sedan three-quarters of a mile away had a minute before the accident cut off Hollyer does not, without more, afford a basis for a rational inference that the plaintiff driving his car caused the collision with a tractortrailer. Neither the question nor Hollyer's answer could have any possible legal relevancy unless and until it was preceded or augmented by some evidence pointing to the car that cut off Hollyer as that of the plaintiff. The predicate of relevancy was entirely lacking.

We cannot subscribe to this reasoning as the authorities by overwhelming weight seemingly hold that although the witness' testimony deviates and is not positive, it nevertheless is admissible where he has actually observed a fact, even though he exhibits some deficiency in his observation. 3 Wigmore, Evidence (3d ed. 1940), §§ 726--728.

It is well settled that the relevancy of testimony must be tested by its probative value with respect to the points at issue, DeCicco v. Marlou Holding Co., 137 N.J.L. 186, 189, 59 A.2d 227 (E. & A.1948), and all relevant evidence is to be admitted unless some specific rule forbids it. Simon v. Graham Bakery, 17 N.J. 525, 111 A.2d 884 (1955); Hampton v. Pennsylvania R.R., 115 N.J.L. 168, 169, 179 A. 101 (E. & A.1935).

In Kuczynski v. Humphrey, 118 N.J.L. 321, 326, 192 A. 371 (Sup.Ct.1937), it was said:

'In civil cases, it is generally sufficient if the circumstantial evidence be such as to afford a fair and reasonable presumption of the facts inferred. Circumstantial or presumptive evidence, as a basis for deductive reasoning in the determination of civil causes, is a mere preponderance of probabilities. The evidence, though not reaching the pinnacle of certainty, is yet sufficient to sustain the burden of proof if it attain the level of probability.'

In Walsh v. Murray, 315 Ill.App. 664, 43 N.E.2d 562 (App.Ct.1942), the factual situation was closely analogous to the...