State v. Martin

• Citation: 183 A.2d 431,75 N.J.Super. 413
• Decision Date: 05 July 1962
• Docket Number: No. A--946,A--946
• Parties: The STATE of New Jersey, Plaintiff-Respondent, v. Edward T. MARTIN, Defendant-Appellant.
• Court: New Jersey Superior Court — Appellate Division

Page 413

75 N.J.Super. 413

183 A.2d 431

The STATE of New Jersey, Plaintiff-Respondent, v. Edward T. MARTIN, Defendant-Appellant.

No. A--946.

Superior Court of New Jersey Appellate Division.

Argued March 19, 1962.

Decided July 5, 1962.

Sidney P. McCord, Jr., Haddonfield, for defendant-appellant (Joseph Asbell, Camden, attorney, Sidney P. McCord, Jr., and McCord, Farrell & Eynon, Haddonfield, of counsel).

Thomas F. Tansey, Deputy Atty. Gen., for plaintiff-respondent (Arthur J. Sills, Atty. Gen., of New Jersey, attorney, Thomas F. Tansey, Trenton, of counsel).

Before Judges PRICE, SULLIVAN and LEWIS.

The opinion of the court was delivered by

PRICE, S.J.A.D.

Defendant appeals from an order of the Acting Director, Division of Motor Vehicles, suspending his motor vehicle 'driving privileges' for a period of one year. The administrative proceedings under review were initiated as the result of an accident on October 25, 1960 in which an automobile owned and operated by defendant struck and killed a pedestrian on a public street in the City of Camden.

By this appeal defendant challenges the propriety of the aforesaid action of the Acting Director on the ground that the violation forming the basis of that action was at variance with the charge set forth in the notice of revocation initiating the proceedings against him.

We desire to note, parenthetically, that in view of the recent opinion of the Supreme Court in Atkinson v. Parsekian, 37 N.J. 143, 179 A.2d 732 (1962), there is no doubt that the Acting Director had jurisdiction to act in the premises.

In the case at bar, on application of defendant, a hearing on the proposed revocation of his license was held by a hearing officer in the Division. Following the filing of that officer's report with the Acting Director, the latter adjudged that defendant 'did violate the intent of R.S. (N.J.S.A.) 39:4--36' and directed the aforesaid suspension of his driver's license.

The record before us does not include a transcript of the testimony given at the hearing. Instead thereof, the hearing officer's report contains a summary only of such testimony, together with certain exhibits, including photographs and diagrams of the accident scene, reports of police officers, a written statement by defendant, and a statement by an officer outlining the information given to him by the sole eyewitness of the accident.

The accident in question occurred at 11:30 A.M. on October 25, 1960. Defendant, who had been operating his car in a southbound direction on River Road in Camden, brought the vehicle to a stop in obedience to a red signal on a traffic light at that road's intersection with East State Street. While waiting for the light to change, defendant saw decedent (who was an 86-year-old man) standing near a telephone pole on the southeast corner of the intersection. The report recited a police officer's testimony (concerning defendant's explanation to him of the circumstances surrounding the happening of the accident) as follows: '* * * as soon as (the light) turned green (defendant) started out again and as he entered the intersection of State St., the pedestrian stepped off the curb in front of him; * * * that he attempted to stop but was unable to stop before he hit the pedestrian.'

The hearing officer's report summarized the testimony of a woman motorist (the eyewitness above mentioned) as follows:

'* * * she noticed that the pedestrian was on the sidewalk and that the defendant's vehicle was approaching from the east; * * * that the pedestrian waited for the light to change and as it changed green in his favor he started to cross the street. She is not sure if the pedestrian was in the crosswalk or not. She thinks he was but she could not definitely state that he was. She said that he was in the street before being struck and that he was walking slow and he held up his left hand just before being hit as though to ward off the vehicle. * * * She said the defendant was not going fast, that he had just started out as he had been stopped for the red light. She stated that she thinks that the victim was hit by the left side of the defendant's car. * * * She stated that she believes the defendant's vehicle and the pedestrian both started out at the same time. She said the victim had not reached the center of the street when struck.'

The hearing officer in his summary of her cross-examination stated that:

'(S)he is not positive that both the vehicle and the pedestrian started out at the same time. She feels there was no careless driving on the part of the defendant.'

Summarizing a portion of the testimony of a police detective, who had prepared a diagram of the accident scene, the hearing officer stated that the detective testified 'that the telephone pole was about 4 to 8 ft. from the crosswalk.'

Defendant's testimony, as summarized by the hearing officer, included a statement that the collision occurred when decedent was '3 to 4 feet out from the curb' and that the 'right front of the car' struck decedent, but that on subsequent inspection the vehicle bore no evidence of the point of impact. The summary of defendant's testimony included no reference to the crosswarlk.

By a written notice dated March 13, 1961 (stated by the Acting Director to be authorized by the provisions of N.J.S.A. 39:5--30), defendant was informed of the proposed revocation of his driver's license, to become effective ten days from the aforesaid date, for the following reason:

'Reason: involved in an accident on October 25, 1960 on East State Street, River Road, Camden, N.J., while operating a motor vehicle in violation of the law; to wit: Section 39:4--36 R.S. (failed to yield to pedestrian Crossing on a crosswalk) resulting in the death of Charles Levick, Camden, N.J.' (Emphasis supplied)

Pursuant to defendant's application for a hearing, the Acting Director, by letter, directed defendant to appear on a specified date 'for a hearing On the charge outlined in our proposed notice of revocation of your driver's license privilege.' (Emphasis supplied)

Following the hearing, the hearing officer submitted his aforesaid report to the Acting Director in which he specifically found that decedent was 'not * * * in the crosswalk' at the time he was struck by defendant's car. Our review of the record leads us to the conclusion that the proofs support the accuracy of that finding. In fact, implicit in the State's argument on this appeal is recognition of the finding that decedent was not within the crosswalk when he was struck by defendant's car. The hearing officer, in recommending the suspension of defendant's license for one year, expressed his conclusions as follows:

'There is some question as to whether the pedestrian was crossing the street in the crosswalk or not. The only eye-witness could not definitely place the victim in the crosswalk. She thinks he was in the walk or close to it. The testimony indicates that the defendant failed to perceive the pedestrian even though he knew he was there on the curb and might cross the street in front of him. Also there were no obstructions between him and the pedestrian to prevent him from seeing him. The fact that the pedestrian may not have...