Schneiderman v. Strelecki

• Decision Date: 03 October 1969
• Citation: 257 A.2d 130,107 N.J.Super. 113
• Parties: Lillian SCHNEIDERMAN and Morris Schneiderman, Plaintiffs-Respondents, v. June STRELECKI, Director of the Division of Motor Vehicles of the State of New Jersey, Defendant-Appellant.
• Court: New Jersey Superior Court — Appellate Division

Page 113

107 N.J.Super. 113

257 A.2d 130

Lillian SCHNEIDERMAN and Morris Schneiderman, Plaintiffs-Respondents, v. June STRELECKI, Director of the Division of Motor Vehicles of the State of New Jersey, Defendant-Appellant.

Superior Court of New Jersey Appellate Division.

Argued Sept. 23, 1969.

Decided Oct. 3, 1969.

Martin Kirsch, Newark, for appellant.

Richard P. Weitzman, Newark, for respondents (Weitzman, Brady & Weitzman, Newark, attorneys).

Before Judges KILKENNY, LABRECQUE and LEONARD.

The opinion of the court was delivered by

LABRECQUE, J.A.D.

In this suit against her under the 'hit and run' provisions of the Unsatisfied Claim and Judgment Fund Act, N.J.S.A. 39:6--78 and 79, the Director of the Division of Motor Vehicles appeals from a judgment based upon a jury verdict in favor of plaintiffs.

At the trial plaintiff Mrs. Schneiderman testified that on the morning of the accident she had been walking on the easterly side of Halsey Street, Newark, and as she was crossing its intersection with Raymond Boulevard, she was struck by a truck which continued on without stopping. She stated that the light was green when she started to cross but that it changed when she was on the crosswalk about halfway across. She then slowed her pace, but the truck, travelling eastward, struck her on her left side. A police officer, who did not see the accident, testified that one Decker, a bystander, had told him he was a witness but the latter was not called by either side.

Defendant's appeal challenges the judgment against her on two grounds: (1) the court erroneously withdrew from the jury's consideration the issue of plaintiff's asserted contributory negligence, and (2) the police report should not have been received in evidence.

In general, whether a plaintiff has been contributorily negligent is an issue for the trier of the facts. Battaglia v. Norton, 16 N.J. 171, 179, 108 A.2d 1 (1954); Kopec v. Kakowski, 34 N.J. 243, 168 A.2d 23 (1961). The test in determining whether the issue is to go to the jury is whether different minds could reasonably reach different conclusions as to the facts or reasonably disagree as to the inferences to be drawn from them. Kent v. County of Hudson, 102 N.J.Super. 208, 215, 245 A.2d 747 (App.Div.1968), aff'd 53 N.J. 546, 251 A.2d 760 (1969). In the absence of disputed facts or disputed inferences to be drawn from undisputed facts, there is no warrant for submission of the issue of contributory negligence to the jury. Kaufman v. Pennsylvania Railroad Co., 2 N.J. 318, 324, 66 A.2d 527 (1949). More specifically, if Mrs. Schneiderman's uncontradicted testimony as to her freedom from contributory negligence was unaffected by any conflicting inferences to be drawn from it, and was not improbable, extraordinary or surprising in its nature, or there was no other ground for hesitating to accept it as the truth, there was no reason for denying the motion to withdraw that issue from the jury. Ferdinand v. Agricultural Ins. Co. of Watertown, N.Y., 22 N.J. 482, 498, 126 A.2d 323, 62 A.L.R.2d 1179 (1956).

Plaintiffs urge that here there was no possibility of conflicting inferences and no ground for hesitating to accept Mrs. Schneiderman's testimony. We disagree. The record reveals items which, in the absence of explanation, could well have raised doubts as to the correctness of portions of her testimony. She had testified that the light was green when she started across; she was the last pedestrian to start to cross; she was walking 'like a person walks,' and when the light turned green when she was halfway across, 'I stopped. I slowed up.' However, the police officer who had found her still lying in the street when he arrived two or three minutes after the accident, testified that she told him at that time, 'she was running across the street, trying to reach the next corner * * *. She was trying to hurry to the next corner.' In his report he had written down that she had stated that 'the signal light had changed while she was in the middle of the intersection and when she went to run to the next corner she was struck * * *.' We cannot say that the jury could not have believed that what she told the police officer was true, in which case it would have been for the jury to determine whether, in view of the apparent emergency, she was in the exercise of reasonable care in proceeding as she did and, if she was not, whether her failure to exercise such care was causally related to the accident.

Turning to the police report defendant argues, in substance, that (1) it was not a business record under Evidence Rule 63(13); (2) it was not admissible as relevant evidence in plaintiffs' case; (3) it contained self-serving matter which barred its admission, and (4) the fact that the officer who had prepared it was called as a witness precluded its allowance into evidence.

We are satisfied that a routine report of an automobile accident, prepared by the investigating policeman in pursuance of his duty and duly filed in the regular course of business, where relevant and not otherwise inadmissible, may be received in evidence as a business record under Rule 63(13) of the Rules of Evidence. Brown v. Mortimer, 100 N.J.Super. 395, 402--404, 242 A.2d 36 (App.Div.1968). See also comments on Rule 63(13) in the Report of the Supreme Court Committee on Evidence (1963), at 177--181. Compare Fagan v. Newark, 78 N.J.Super. 294, 319, 188 A.2d 427 (App.Div....