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Felix v. Adelman

Decided: September 27, 1934.

LEHMAN F. FELIX AND JOHN CLEARY, PLAINTIFFS-RESPONDENTS,
v.
LEON ADELMAN, DEFENDANT-APPELLANT



On appeal from the Supreme Court.

For the plaintiffs-respondents, Albert A. F. McGee.

For the defendant-appellant, Cole & Cole.

Case

The opinion of the court was delivered by

CASE, J. The action is an outcome of a collision on the White Horse pike near Absecon between a Ford truck owned and driven by Felix, Cleary being a passenger thereon, and a Packard car driven by Adelman. Both vehicles were headed south, the truck standing at the roadside either entirely or mostly off the concrete, the car traveling in speed towards Atlantic City. Felix, putting the truck in motion, undertook forthwith to make a sharp left or so-called "U" turn in order to become faced in the opposite direction on the other side of the highway and in so doing took a course crosswise of the traffic. The oncoming car smashed into the truck. The spot was not at or relatively near a road intersection.

The plaintiffs, Felix and Cleary, brought the present suit, joining their separate actions in the same complaint but setting up mutually exclusive counts. Adelman counter-claimed against Felix. Verdicts for money awards went for the plaintiffs on their respective claims and of no cause of action on the counter-claim. Adelman appeals from the whole judgment. The grounds of appeal go exclusively to the refusal of the trial court to charge the jury upon certain of the defendant's requests. The same general thought runs through all of these requests, and it is that Felix was under the duty to use great care and to seek an opportune time.

The first request places the idea in its simplest form and is the one first argued. It follows: "If you find that plaintiff Felix intended to make a left-hand turn and cross the path of oncoming traffic from the north on the White Horse pike in order to get over to Dad's clam stand, you will ask yourselves whether he used great care and sought an opportune time in so doing, for he cannot recover unless he did use great care and did seek an opportune time." Appellant relies upon decisions by the Supreme Court in Senofsky v. Frecker, 10 N.J. Mis. R. 505; 159 A. 797, and Day v. Beyer, 5 N.J. Mis. R. 1069; 139 A. 317. The fundamental rule, as expressed by this court, is that users of the highway must exercise reasonable care, that the degree of care required is commensurate with the risk of danger and

that where there is evidence from which performance of the duty thus imposed may reasonably be inferred the issue of negligence is for the jury. Lipschitz v. New York and New Jersey Produce Corp., 111 N.J.L. 392; 168 A. 390. That legal principle was sufficiently charged to the jury. The trial court said in part:

"In consequence of receiving certain requests to charge submitted by the defendant, Adelman, I am induced to say to you that it was the duty of Mr. Felix in attempting to make a left-hand turn across a main highway, if you determine the White Horse pike to be such, to exercise care commensurate with the existing dangers. One who attempts to turn his car across a highway, which is a main artery of traffic, and in front of oncoming vehicles, if you conclude in this case that such were the circumstances, must exercise care commensurate with the hazard and danger of such a movement. * * * To find that a person was negligent is to conclude that such person failed to exercise reasonable care. And reasonable care is said to be that degree of care that an ordinarily prudent person would exercise or employ in the same or like circumstances. The degree of care required varies according to the circumstances. It has been stated in these cases, and rightly so, that the degree of care required of the drivers involved was a high, great, or extreme degree of care, particularly on the part of Mr. Felix, who was attempting to make a turn on a much traveled highway. If you regard reasonable care as a fixed degree of care, regardless of the circumstances, dangers, or hazards, then it becomes necessary to speak of it in these cases as a high degree of care, considering the circumstances existing at the time, because that degree of care which would be required in some circumstances might not be reasonable in other or different circumstances. If we emphasize the adjective 'reasonable,' as applies to the degree of care, we see that the degree of care may be variable. In other words, the degree of care that might be required of an ordinarily prudent person in some circumstances, would, perhaps, be greater or more, if I may use those two words, than would be legally expected of a person under other or different

circumstances. This discussion about the degree of care arises in these cases because it is contended on behalf of the defendant, Adelman, that Felix, having slowed down or stopped on the side of the road, contemplated crossing the highway not at a street intersection, but in the middle of a main highway, where oncoming drivers of vehicles, or other drivers, might not particularly expect him to make a turn. It is further contended, therefore, that Felix was under the duty of exercising that degree of care which was commensurate with those existing conditions, or those existing dangers."

We do not distinguish in this case between "great care" and a "high degree of care." "High degree of care" connotes no more than a degree of care commensurate with the risk of danger. New Jersey Fidelity and P.G. Insurance Co. v. Lehigh Valley Railroad Co., 92 N.J.L. 467. How far an underlying legal principle should be amplified to fit special circumstances confronting a jury is difficult of general definition. We do not comment upon the portion of the charge relating to "great care" further than to observe that it was apparently ...


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