Seipel v. Sevek

Decision Date09 December 1958
Docket NumberNo. A--348,A--348
Citation53 N.J.Super. 151,146 A.2d 705
PartiesCharles SEIPEL, Plaintiff-Respondent, v. Charles SEVEK and Melba Silverman, Defendants-Appellants, and Roland K. Then, Herbert M. Then, Cirioco Scoppettuolo and Pontiac Construction Company, a corporation of New Jersey, Defendants.
CourtNew Jersey Superior Court — Appellate Division

Merritt Lane, Jr., Newark, argued the cause for appellants (McCarter, English & Studer, Newark, attorneys).

Edward M. Gurry, Newark, argued the cause for respondent (Edward M. Gurry and Rizzolo & Montalbano, Newark, attorneys for and of counsel with respondent).


The opinion of the court was delivered by


Defendants Sevek and Silverman appeal from a final judgment of the Law Division in favor of plaintiff on a jury verdict of $15,000 for personal injuries and $899 for damages to his automobile.

The only issue brought up for review is the propriety of the trial court's denial of a motion for involuntary dismissal of plaintiff's complaint at the close of the entire case. The basis of this asserted error is that plaintiff assumed the risk or was contributorily negligent as a matter of law. If this be so, it must follow that the trial court erred when it failed to grant their motion.

The action arose from a multiple automobile collision which occurred on January 4, 1956 at about 7:50 A.M. on Bloomfield Avenue in Montville Township, Morris County, at or near the place where Bloomfield Avenue intersects U.S. Route 46. Bloomfield Avenue at the point of the occurrence is a four-lane highway, bisected by a center grass plot approximately 16 feet in width. The highway runs in a general easterly-westerly direction and is heavily travelled. The collision occurred in the westbound roadway. That roadway embraces two traffic lanes, each approximately ten feet in width. It is bounded on the north by a shoulder approximately 12 feet in width and on the south, adjoining the center grass divider, by a shoulder approximately two feet in width. The terrain on both sides of Bloomfield Avenue at this point is low and swampy. Nearby is a river.

On January 4, 1956 the roadway in the vicinity of the scene of the occurrences was icy. The area was blanketed by a rolling fog. Visibility was limited to a distance of from 20 to 40 feet, depending upon the movement of the fog. Plaintiff testified that the visibility at the time of the several collisions hereinafter referred to was limited to a distance of 30 to 40 feet.

Plaintiff, a Connecticut resident, was employed at the time in Parsippany-Troy Hills. He had lived in Caldwell, New Jersey, during the working week for approximately six months prior to the date of the collision. He drove from Caldwell to his place of employment, over Bloomfield Avenue '(e)very working day from the preceding July' and was very familiar with Bloomfield Avenue at the place of the accident.

On the day in question plaintiff was driving his vehicle along the westbound roadway of Bloomfield Avenue. Two of his co-workers, Vegliante and Vuolo, were passengers in his automobile. The parking lights of plaintiff's vehicle were illuminated. As he neared the intersection of U.S. Route 46 he moved his automobile from the right, or slow traffic lane, into the left, or fast traffic lane. This was in accordance with plaintiff's usual driving practice at this point. He 'just felt it was the best way to (avoid congestion at the Route 46 junction) and some others (he) knew of shared (his) opinion.' After he had accomplished this move he noticed a vehicle ahead of him 'fishtailing' or swerving on the ice. That vehicle slowed down, its braking lights illuminated. Plaintiff braked his vehicle and his speed slackened. Before his vehicle came to a complete stop it was struck in the rear by the vehicle of defendant Roland Then (Roland). Plaintiff's automobile was propelled forward by this impact. He brought it to a stop, without skidding, along the left lane of the roadway, within inches of the center divider. Plaintiff, after setting his emergency brake, immediately alighted from his vehicle, leaving it standing in the fast lane. He was followed by Vegliante, the passenger who had been occupying the rear seat. Plaintiff observed the other passenger, Vuolo, who had been sitting in the right front seat, sliding across the front seat towards the driver's position. Roland, in the meantime, had backed his automobile off the travelled portion of the roadway onto the shoulder adjoining the right lane on the north, a distance of 35--40 feet east of where plaintiff had left his car. Plaintiff crossed the roadway to Roland's automobile to ascertain why Roland had collided with his vehicle. Before any conversation took place, and while Roland was lowering his window, plaintiff's vehicle was again struck, this time by the vehicle of defendant Herbert Then (Herbert)--coincidentally, a brother of Roland. The impact of this collision propelled plaintiff's vehicle forward approximately 15 feet and reversed its position so that its front faced in an easterly direction and its rear in a westerly direction. Vuolo thereupon abandoned plaintiff's automobile in the roadway. Herbert's car came to rest to the rear (west) of plaintiff's car, across both lanes, facing the center island. Thereupon, plaintiff 'gave one look' to the rear, in which direction he could see two or three car lengths, and immediately re-crossed the highway some 45 feet to the scene of the second collision, for the purpose, as he testified, of ascertaining if anyone were 'hurt.'

The right rear bumper of plaintiff's automobile was inches from the left side of Herbert's car. Plaintiff testified that he had to jump over the bumper of his car to get to the door in order 'to see what had happened to (Herbert).' Before he could open Herbert's car door he heard someone shout a warning to him. Plaintiff immediately backed away from Herbert's car and ran along the roadway in a westerly direction, away from the scene. He had covered a short distance when he was propelled into the air and across the grass plot, coming to rest in the eastbound roadway. This untoward event occurred because of a third or fourth collision hereafter described. The third collision was between a panel truck owned by defendant Silverman and then being operated by defendant Sevek, and plaintiff's automobile. As Sevek was alighting from the panel truck it, in turn, was struck by a dump truck, the property of defendant Pontiac Construction Company (Pontiac), then under the control of defendant Scoppettuolo. Either the Silverman collision with plaintiff's car or the Pontiac collision with the Silverman car caused plaintiff's vehicle to skid along the roadway and strike him.

Vuolo testified that after the first collision and after plaintiff had vacated the driver's place in the vehicle, he 'slid over behind the wheel in an attempt to pull the vehicle from the highway.' However, 'before (he) had an opportunity to shut the door and release the emergency' plaintiff's vehicle was struck again. Vuolo then 'felt that that was not a very good place to be, so (he got) out of the vehicle as rapidly as (he) possibly could.' Neither his original intention nor his latter action were made known to plaintiff.

Plaintiff admitted that he was aware that the center of the roadway, the scene of the two collisions, was a dangerous place to be, or at least that it was more dangerous than his position at the shoulder of the roadway.

Defendant's position is that there was no controversy as to what plaintiff did or failed to do, and that the evidence was not fairly susceptible of divergent inferences on the question of whether plaintiff's conduct met the requirements of due care. Plaintiff allegedly was guilty of contributory negligence either (1) in abandoning his car in the fast lane after the Roland collision, or (2) in leaving the shoulder and retraversing the highway after the Herbert collision. Defendant argues also that plaintiff assumed the risk of harm when he ventured into the highway after the Herbert collision.

On a motion for involuntary dismissal the party against whom the motion is directed is entitled to have the facts viewed in the light most favorable to his position and to the benefit of all favorable inferences which may legitimately and logically be drawn from the proven facts. Melone v. Jersey Central Power & Light Co., 18 N.J. 163, 170, 113 A.2d 13 (1955); R.R. 4:42--2(b).

Contributory negligence and assumption of risk are usually questions for the jury. In an appropriate case, however, they become questions of law for the trial judge and should not be submitted to the jury. This proposition is well stated in Bratka v. Castles Ice Cream Co., 40 N.J.Super. 576, 587, 123 A.2d 793 (App.Div.1956), certification denied 22 N.J. 226, 125 A.2d 439 (1956), where the court said, 40 N.J.Super. 576, 123 A.2d 798:

'While the authorities indicate that contributory negligence and assumption of risk are usually questions for the jury, it is equally plain that in an appropriate case these become questions of law for the trial judge and should not be submitted to the jury. Card v. Carrigan, 137 N.J.L. 722, 724, 61 A.2d 263 (E. & A. 1948); George Siegler Co. v. Norton, 8 N.J. 374, 383--384, 86 A.2d 8 (1952). Justice Heher, speaking for the court in Bianchi v. South Park Presbyterian Church, 123 N.J.L. 325, 334, 8 A.2d 567, 124 A.L.R. 808 (E. & A. 1939), affirming a verdict directed in favor of defendant, said:

"Reason and justice dictate that one cannot deliberately incur an obvious risk, especially where preventive means are at hand, and then hold the author of the danger for the ensuing damage. Whether such conduct be classed as an assumption of risk or contributory negligence, it precludes recovery."

In Bacak v. Hogya, 4 N.J. 417, 426, 73 A.2d 167, 172 (1950), the court said:


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