Vespe v. DiMarco

• Decision Date: 01 December 1964
• Docket Number: No. A--14,A--14
• Citation: 43 N.J. 430,204 A.2d 874
• Parties: Joseph VESPE, Plaintiff-Appellant, v. Charles B. DIMARCO, Defendant-Respondent.
• Court: New Jersey Supreme Court

Page 430

43 N.J. 430

204 A.2d 874

Joseph VESPE, Plaintiff-Appellant, v. Charles B. DIMARCO, Defendant-Respondent.

No. A--14.

Supreme Court of New Jersey.

Argued Oct. 19, 1964.

Decided Dec. 1, 1964.

Sidney M. Schreiber, Newark, for plaintiff-appellant (Gerald W. Conway, Newark, on the brief; Schreiber, Lancaster & Demos, Newark, attorneys).

Michael Patrick King, Camden, for defendant-respondent (Arthur Montano, Camden, of counsel; Kisselman, Devine, Deighan & Montano, Camden, attorneys).

The opinion of the court was delivered by

FRANCIS, J.

In this case plaintiff sought to recover damages for personal injuries and monetary losses which he claimed were caused by defendant's negligence in the operation of his automobile. After trial the jury, by a vote of ten to two, returned a verdict for the defendant. The Appellate Division affirmed in an unreported opinion and we granted plaintiff's petition for certification. 42 N.J. 141, 199 A.2d 654 (1964).

The accident occurred on January 20, 1961 on the New Jersey Turnpike in Cherry Hill Township, Camden County, New Jersey. The Turnpike roadway proper is 48 feet wide at this point with four traffic lanes, two northbound and two southbound, separated by a ten-foot median island. Each lane is 12 feet wide and, in addition, a ten-foot shoulder borders each side of the roadway.

Snow had fallen for some time on the morning of January 20 until around noon. Duration of the fall was not given. It was sufficient, however, for the plows to be out and the roadway had been cleared except for patches here and there along the surface. . the snow had been pushed to the edge of the shoulder. The resulting piles there were about 12 inches deep. The mishap took place about 3:00 P.M. at which time it was clear and sunny. No one testified to the temperature. Because of the storm, the speed limit had been reduced to 35 miles per hour.

Prior to the accident in question a northbound tractor-trailer had jackknifed. It came to rest partly on the center island with its rear extending about half way across the left, or fast, northbound lane. The incident was reported to the police and two Authority maintenance trucks as well as State Troopers appeared on the scene. The trucks parked on the shoulder of the road facing north and some distance to the south of the position of the disabled vehicle. Both of them had rooftop amber flashing lights which were in operation.

A State Police patrol car drove to the scene and parked on the southbound right shoulder of the Turnpike about opposite the jackknifed tractor-trailer. The car carried a rooftop beacon light which was flashing red. The trooper, Ephriam Toy, alighted and proceeded to render assistance. He helped place flares on the roadway beginning at the center line of the northbound lanes about opposite the rear of the trailer and tapering in a southerly direction toward the median island for a distance of about 300 feet. Shortly thereafter, plaintiff Joseph Vespe, also a State Trooper, arrived in his patrol car. He had been proceeding in a northerly direction on the Turnpike. He drove 25 to 30 yards north of the trailer and parked his car on the right shoulder of the roadway. A third trooper, John Rosko, who had been northbound, pulled up and parked ahead of Vespe. Both men stepped out and went to the disabled vehicle to assist. After a few minutes, the situation being in hand, Vespe and Rosko decided to return to their cars. Vespe went across the roadway to the easterly edge of the right shoulder and began to walk north toward his vehicle. Rosko followed almost immediately thereafter but proceeded north on the center island.

At this time northbound traffic on the Turnpike was moving freely past the jackknifed tractor-trailer in the 12-foot righthand lane. Defendant Charles B. DiMarco was driving north on the Turnpike. He was accompanied by an unnamed passenger who was not produced at the trial. There were three or four cars in front of him proceeding north, the nearest one being about 60 to 70 feet ahead. The road had snow patches in this area. He did not specify his rate of speed; in fact, no witness estimated it. Approaching the location of the disabled trailer, he observed the flares on the roadway when he was 20 to 30 feet from the first one. He noticed a trooper standing in the left lane near the trailer indicating to drivers that they should stay to the right. The cars in front of him veered slightly to the right and passed without difficulty. He moved about five feet to the right, apparently without any change in speed, and went into a skid. Precisely where this was with respect to the first flare was not specified.

Here it may be noted that at the pretrial conference, DiMarco's attorney said that as DiMarco proceeded he 'applied his brakes causing his vehicle to go into a skid and strike the plaintiff who was standing in the middle of the roadway.' That statement was incorporated in the pretrial order over the attorney's signature, and under our present practice was entitled to considerable probative force as an admission against defendant.

In any event, as his car spun around in the skid, DiMarco said he then applied his brakes. He testified also that as he skidded, he saw Vespe walking north on the right shoulder of the road (not standing in the middle of the roadway as the pretrial order stated). He did not say whether the brakes were applied before or after he saw Vespe. In skidding, the car made a complete turn, then 'skidded completely to the right and started sliding to the right,' and while doing so the right rear quarter panel struck Vespe, throwing him into a gulley or ditch to the right of the road.

Trooper Toy testified when he first saw the DiMarco vehicle it was skidding, 'sliding broadside.' It seemed to be heading toward Vespe whose back was to it as he walked toward his car. Toy called out a warning but the right rear of the car hit Vespe and he 'went through the air' and landed in the ditch. As Rosko put it, he saw Vespe's body 'hurtling through the air and it fell in the ditch.' Examination showed a dent in the lower right rear side of DiMarco's car. By actual measurement, the distance from the point of impact to the ditch was 27 feet. After Vespe was struck, the car continued on in its skid for about 12 feet and stopped in the one-foot pile of snow on the edge of the shoulder of the road. The skid and sideways slide marks leading to the rear wheels measured 75 feet.

The facts of the accident as outlined above were substantially undisputed at the trial of Vespe's injury claim. After five hours of deliberation, the jury returned a verdict for the defendant. The trial court declined to vacate it as contrary to the weight of the evidence.

I

On this appeal plaintiff argues it was plain error for the trial court to exclude the doctrine of Res ipsa loquitur from the jury's consideration. Defendant points out that there was no request to charge on the subject and no objection to the charge because of the court's failure to include it in instructing the jury on the issue of negligence. R.R. 4:52--1 imposes an obligation on counsel to object to portions of a charge which he considers erroneous. Where there is a failure to comply with the rule appellate tribunals are not disposed to review a challenged instruction. In rare cases, however, where the instruction qualifies as plain error under R.R. 1:5--3(c), an exception is made. Such error exists when the language employed by the trial judge in guiding the deliberations of the jury constitutes legal impropriety affecting the substantial rights of the party affected of sufficiently grievous nature to justify notice by the reviewing court and to convince the court that, of itself, the error possessed a clear capacity to bring about an unjust result. State v. Corby, 28 N.J. 106, 108, 145 A.2d 289 (1958). As will be seen, error of that dimension must be found here.

In our judgment the facts of the accident as detailed above warrant application of the doctrine of Res ipsa loquitur. The circumstances attending the skidding of defendant's car--the distance of the skid, the striking of the plaintiff located as he was off the traveled portion of the Turnpike and at the farther edge of the shoulder and the severity of the impact--combine to bring into the case for the benefit of the plaintiff a permissible inference that the mishap occurred because of defendant's want of due care. The rationale was expressed by the court in Murphy v. Kumler, 344 Ill.App. 287, 100 N.E.2d 660, 662 (App.Ct.1951).

'The causes of one skidding an automobile on a wet or icy pavement are manifold, and are most often hidden within the breast and mind of the operator of the skidding car. On an icy pavement a momentary lapse of memory, a glance toward a passenger, or any other slight distraction, as well as speed or other improper handling might cause the skidding. It might even be a defect in the mechanical condition of the vehicle. Certainly it is not incumbent upon the plaintiff to show conclusively why the defendant was on the wrong side of the road or the exact cause of the skid. Only on rare instances would that knowledge be possessed by the plaintiff.'

And, cf. Bevilacqua v. Sutter, 26 N.J.Super. 394, 98 A.2d 60 (App.Div.1953); Mackenzie v. Oakley, 94 N.J.L. 66, 108 A. 771 (Sup.Ct.1920); Rogers v. Dubiel, 373 P.2d 295 (Alaska Sup.Ct.1962); Tomlinson v. Chapman, 24 Ill.App.2d 192, 194 N.E.2d 240 (1960); Ehrlich v. Merritt, 96 F.2d 251 (3 Cir. 1938).

This is not to say the jury would be compelled to infer that defendant was negligent in the operation of his car and so caused plaintiff's injury. But plaintiff was entitled to the advantage of the inference, the Prima facie case it presented and the right not to have it affirmatively Excluded from consideration by the jury. It is settled that even if a plaintiff pleads and proves some specific acts of negligence on the part of a defendant...