Varlaro v. Schultz

• Decision Date: 23 January 1964
• Docket Number: No. A--223,A--223
• Citation: 197 A.2d 16,82 N.J.Super. 142
• Parties: Henry VARLARO, Plaintiff-Respondent, v. Robert P. SCHULTZ, Defendant-Appellant.
• Court: New Jersey Superior Court — Appellate Division

Page 142

82 N.J.Super. 142

197 A.2d 16

Henry VARLARO, Plaintiff-Respondent, v. Robert P. SCHULTZ, Defendant-Appellant.

No. A--223.

Superior Court of New Jersey

Appellate Division.

Argued Jan. 13, 1964.

Decided Jan. 23, 1964.

Abraham J. Slurzberg, Jersey City, for appellant (Adler & Adler, Bayonne, attorneys).

Lewis M. Holland, Jersey City, for respondent (Warren, Chasan, Leyner & Holland, Jersey City, attorneys and of counsel, Lewis M. Holland, Jersey City, on the brief).

Before Judges GOLDMANN and COLLESTER.

The opinion of the court was delivered by

GOLDMANN, S.J.A.D.

Defendant appeals from a $30,000 Law Division judgment based upon a unanimous jury verdict in an intersectional accident case, finding defendant guilty of negligence in the operation of his automobile and plaintiff motorcycle officer free of contributory negligence. He also appeals the denial of his motion for a new trial. Defendant claims that (1) the trial court erred in denying his motion for judgment of dismissal at the close of plaintiff's case; (2) the court failed to instruct a jury on all the fundamental legal principles controlling the case, thereby affecting his substantial rights; and (3) the verdict was against the weight of the evidence.

One of the three judges of the Part being unable to attend the oral argument because of a heavy storm, counsel agreed that the matter be heard and determined by the two remaining judges.

I

On March 1, 1960 plaintiff, a motorcycle traffic officer of West New York, received a radio message from police headquarters directing all units to proceed to 60th Street and River Road, where a car had gone over a cliff. Plaintiff at once turned on the two blinker lights between the motorcycle handlebars and, with his siren sounding, proceeded down 61st Street to Palisade Avenue and then to 60th Street, the main street of the town. He saw an ambulance, emergency truck and a police car proceeding east on 60th Street, and fell in line some 50 --75 behind them. All were sounding their sirens. As the four vehicles continued east on 60th Street, two West New York employees in a Public Works Department truck, D'Aniello and Tritt, heard the sirens and fell in behind plaintiff's motorcycle.

Plaintiff's route took him across Park Avenue, the intersection immediately before Boulevard East. The block from Park to the Boulevard is a short one, about 180 , and a 'little hilly' down toward the Boulevard. As plaintiff approached Boulevard East, with his blinker lights going and siren 'blasting,' the police car was about 100 in front of him, the first three vehicles in the motorcade having travelled at a somewhat greater speed. He testified that his siren could be heard for quite a distance. Defendant's witness Hamza, employed in a garage on 60th Street, west of Park Avenue, was working in the garage pit located some 100 from the street when he heard the siren. He climbed out of the pit in time to see plaintiff pass on his motorcycle, and he described its speed as 'normal fast.'

Traffic on 60th Street had yielded to the emergency vehicles by pulling over to the curb and stopping. The three vehicles preceeding plaintiff passed through the intersection at Boulevard East without incident, and continued easterly. Plaintiff testified that after having travelled a little less than half the length of the block from Park Avenue to Boulevard East, and when he was 50 --80 past Park, he saw defendant's car come from his left on Boulevard East and enter the intersection. The car slowed down, but then 'just kept straight on going.' Plaintiff slowed his motorcycle by applying both the foot and hand brakes, but immediately recognized that he could not stop in time to avoid a collision. He testified that he considered jumping off the motorcycle, but was concerned for the safety of a group of people waiting on the corner for a bus. On the other hand, going downhill 'if I hit the handbrake the front end of the machine goes down and I go flying over.' Since defendant at the moment was following a straight course on Boulevard East, plaintiff cut to the left and tried to go around the rear of the car. However, defendant, instead of continuing in a straight line, started to turn left. Plaintiff struck the car on the right side, ten inches from its read end. Plaintiff testified that as he approached the intersection where the collision occurred, he was travelling at between 35 and 45 miles per hour. The actual impact occurred on the northwest side of the intersection. Defendant's car had by then gone partially into the right-hand eastbound lane of 60th Street extended.

The day was clear and dry. Defendant testified he was proceeding south along Boulevard East at about 20 miles per hour. The traffic light at the intersection of 60th Street was green in his favor. (Plaintiff did not remember if he observed the light or its color.) Defendant said that as he approached the intersection he took his foot off the accelerator and slowed the car somewhat. Prior to entering the intersection he made an observation to his left and right, saw nothing, heard nothing, and continued on. He stated that when he was at about the center of the intersection he looked to his right and saw plaintiff's motorcycle about 80 away. It was then that he heard a siren. He turned his car to the left to avoid a collision, but the motorcycle crashed into its right rear. His car came to rest at the southeast curb of the intersection. Defendant insisted that before entering the intersection he did not hear the blowing of any siren or see any cars go by.

Both D'Aniello and Tritt, the Public Works employees riding in the truck directly behind plaintiff, testified that the sirens and blinker lights of plaintiff's motorcycle and the three emergency cars in front of him were in operation continually as they proceeded east on 60th Street toward Boulevard East. They corroborated the position of the motorcycle and defendant's car, and the movement of each vehicle, as plaintiff had testified.

Defendant's motion for dismissal at the close of plaintiff's case was denied. The trial proceeded with the production of defendant's proofs, and the jury then returned the indicated verdict. Defendant's motion for a new trial was denied.

II

Defendant's first argument is that plaintiff failed to prove a Prima facie case, and therefore his motion for judgment of dismissal should have been granted. It is defendant's position that plaintiff had the burden of proving he drove his motorcycle 'with due regard for the safety of all persons,' I.e., that he was not guilty of contributory negligence. This contention is based upon defendant's interpretation of the second paragraph of N.J.S.A. 39:4--91 'The driver of a vehicle upon a highway shall yield the right of way to any authorized emergency vehicle when it is operated on official business, or in the exercise of the driver's profession or calling, in response to an emergency call or in the pursuit of an actual or suspected violator of the law and when an audible signal by bell, siren, exhaust whistle or other means is sounded from the authorized emergency vehicle and when the authorized emergency vehicle, except a police vehicle, is equipped with at least one lighted lamp displaying a red light visible under normal atmospheric conditions from a distance of at least five hundred feet to the front of the vehicle.

This section shall not relieve the driver of any authorized emergency vehicle from the duty to drive with due regard for the safety of all persons, nor shall it protect the driver from the consequences of his reckless disregard for the safety of others.' (L.1928, c. 281, Art. VIII, §§ 13 and 15, as amended by L.1951, c. 23, § 49.)

The Motor Vehicle Traffic Act, R.S. 39:4--1 et seq., as amended, N.J.S.A., established a standard of conduct in the operation and management of motor vehicles on our highways. Niles v. Phillips Express Co., 118 N.J.L. 455, 460, 193 A. 183 (E. & A.1937). The statute is penal, and a violation of any of its provisions is prosecuted in a quasi-criminal action. See N.J.S.A. 39:4--203. It gives no private right of action for injuries resulting from a violation, but its provisions may affect private rights upon common law principles applicable to actions of negligence. Doyon v. Massoline Motor Car Co., 98 N.J.L. 540, 545, 120 A. 204 (E. & A.1923). A violation of the Traffic Act does not amount to negligence Per se, but is a circumstance to be considered by a jury in determining from all the facts and circumstances of the case whether there was negligence on the part of the person whose conduct is being investigated. Jones v. Lahn, 1 N.J. 358, 362, 63 A.2d 804 (1949).

Defendant concedes that at the time of the accident plaintiff was driving an emergency vehicle in response to an emergency call. He does not seriously contend that plaintiff failed to give the requisite warnings, but does raise some question as to whether the proofs establish that he could have seen plaintiff's blinker lights or heard his siren or the sirens of the three vehicles preceding the motorcycle.

The nub of defendant's argument is, as already noted, that it was plaintiff's burden to establish affirmatively that he was free from contributory negligence, and this by reason of the statutory admonition that the driver of an emergency vehicle is not relieved from the duty of due care. Defendant freely concedes that the burden of proving contributory negligence is normally on a defendant, and the plaintiff is not required to prove its absence as a part of his case. Kaufman v. Pennsylvania R. Co., 2 N.J. 318, 324, 66 A.2d 527 (1949). We do not read the statute as altering this normal allocation of the burden of proof.

The Legislature, in enacting N.J.S.A. 34:4--91, determined that it was in the public interest to exempt emergency vehicles from certain traffic regulations normally controlling. The first paragraph establishes the...