Schaublin v. Leber, No. A--261

• Court: New Jersey Superior Court – Appellate Division
• Writing for the Court: GAULKIN
• Citation: 142 A.2d 910,50 N.J.Super. 506
• Docket Number: No. A--261
• Decision Date: 19 June 1958
• Parties: Theresa SCHAUBLIN, Plaintiff-Respondent, v. Wallace R. LEBER, Defendant-Appellant. . Appellate Division

Page 506

50 N.J.Super. 506 142 A.2d 910 Theresa SCHAUBLIN, Plaintiff-Respondent,
v.
Wallace R. LEBER, Defendant-Appellant. No. A--261. Superior Court of New Jersey.
Appellate Division. Argued May 5, 1958.
Decided June 19, 1958.

Page 508

[142 A.2d 911] Frederick Klaessig, Jersey City, argued the cause for plaintiff-respondent (Robert H. Muller, Hoboken, attorney; Frederick Klaessig, Jersey City, on the brief).

Samuel A. Larner, Newark, argued the cause for defendant-appellant Marley, Winkelried & Hillis, Newark, attorneys).

Before Judges STANTON, HALL and GAULKIN.

The opinion of the court was delivered by

GAULKIN, J.A.D.

Plaintiff, a pedestrian, recovered a judgment following a jury verdict in the Hudson County District Court, for the injuries she sustained when her head came into contact with the open rear window of defendant's parked station wagon, which extended horizontally seven to eight inches beyond the rear bumper, at a height of about 5 1/2 feet above the pavement. Defendant appeals, asserting that the trial court should have granted his motion for involuntary dismissal at the end of plaintiff's case, and for judgment at the end of the entire case, because the evidence failed to show negligence or proximate cause, and did show contributory negligence.

The accident happened near the intersection of Dodd Street and Palisades Avenue, Weehawken. In determining whether the trial judge should have taken the case from the jury, we must take that view of the evidence most favorable to the plaintiff. Indeed, most of the facts are not in substantial dispute. About 9 P.M. of a June evening the plaintiff was crossing Dodd Street from the southeasterly corner of the intersection to a drug store on the northeasterly corner. The drug store was one of a group of business buildings, fronting on the easterly side of Palisades Avenue, which were set back farther easterly from Palisades Avenue than the dwelling houses which filled the rest of the block. This created a wide sidewalk plaza in front of the business buildings, at the northeast corner of Palisades Avenue and Dodd Street.

Photographs in evidence showed that there was a marked crosswalk across Dodd Street. The lines were of white

Page 509

paint, but broken, extending a few feet from the south side of Dodd Street and less from the north side, with a large gap in the middle which was not outlined at all. The easterly of these painted lines was in line with the set-back of the dwelling houses in the block toward which plaintiff was walking. Consequently, one crossing within the painted lines from the southerly side of Dodd Street to the sidewalk on the northerly side would find himself about 20 feet from the door of the drug store.

Defendant parked his station wagon on Dodd Street, facing west, parallel to the northerly curb, and about two feet east of the crosswalk indicated by the painted lines. The station wagon was about 12 feet long. That placed the rear of the vehicle west of the entrance of the drug store. Defendant left the rear window open, projecting horizontally outward seven to eight inches beyond the bumper. The station wagon was described as about 5 8' high. About three feet behind the station wagon another car was parked. The station wagon was unattended and without lights. The drug store was brightly lit, but that put in shadow the side of the station wagon which plaintiff faced. There were no traffic lights at the intersection.

Plaintiff, 72 years old and about 5'7' tall, with her dog on a leash, stepped off the south curb of Dodd Street. The Palisades Avenue sidewalk in the block she was leaving was about ten feet wider than the outlined crosswalk. Instead of crossing within the marked crosswalk, she headed at an angle northeasterly across Dodd Street, directly toward the door of [142 A.2d 912] the drug store. As she attempted to pass behind defendant's vehicle her head struck the corner of the open window, which she had not seen before, even though she had been looking straight ahead. Hair from her head was found on the southerly corner of the window.

Defendant argues, in his brief, that leaving the window open and extended under the above circumstances was not negligent because there were 'no unusual facts * * * which would serve to warn the defendant of the probability of an individual seeking to cross the street by squeezing

Page 510

between the rear of his vehicle and the vehicle parked behind it.'

The test of negligence in this situation, as in any other case, is whether a reasonably prudent man at the time and under the circumstances should foresee an unreasonable risk or liklihood of harm or danger to someone else. 2 Restatement of Law, Torts, secs. 282, 284(a), 289, 302(b); 2 Harper and James, Law of Torts, pp. 928, 936; Prosser on Torts (2d ed.), p. 119; Martin v. Bengue, Inc., 25 N.J. 359, 371, 136 A.2d 626 (1957); Harpell v. Public Service Coordinated Transport, 35 N.J.Super. 354, 360, 114 A.2d 295 (App.Div.1955), affirmed 20 N.J. 309, 316, 120 A.2d 43 (1956). The test does not encompass every possible risk of harm. Generally it is for a jury to say what the reasonable man would foresee, since its decision is thought most likely to accord with commonly accepted standards. The courts allow wide latitude to the jury, restricting their sphere...