On appeal from the Supreme Court.
For the plaintiff-respondent, Carey & Lane (John W. McGeehan, Jr., Robert Carey and Harry Lane, for counsel).
For the defendants-appellants, Townsend & Doyle and Dolan & Dolan (Mark Townsend, William A. Dolan and William G. McLaughlin, of counsel).
The opinion of the court was delivered by
PORTER, J. This is an appeal from a judgment for the plaintiff, who has a verdict for $37,000 against both defendants for personal injuries suffered by him in an automobile accident. The plaintiff, Stanley A. Hala, Jr., was a guest passenger in an automobile driven by the defendant Benjamin L. Worthington, Jr., and owned by his father, the defendant Benjamin L. Worthington, Sr. The action is based upon the allegation that the proximate cause of the accident was the negligence of the driver and that the owner had authorized
his son to drive, with full knowledge of his physical incompetency due to defective eyesight.
The undisputed facts are that Worthington, Jr., had used his father's automobile on Saturday afternoon, September 28th, 1940, on an errand for him and that he took with him his fiancee, Miss Irma Lee McHorney. This couple had dinner that evening with Worthington's parents at their home in Glen Ridge, and left there to call on Mr. and Mrs. Hala at Montclair at about nine-thirty. Mrs. Hala and Miss McHorney were friends, but neither Mr. or Mrs. Hala had previously met Mr. Worthington, Jr. About twelve-thirty A.M. the party went in the Worthington car to a roadside refreshment stand at Verona, which was nearby, and had coffee and sandwiches. While at this place, reference was made to the fact that Mrs. Hala had just had a birthday, whereupon it was suggested by Worthington, Jr., that that justified their having a drink, and he invited them to go as his guests to "The Well," a place of amusement in West Caldwell, about three or four miles distant. The route to "The Well" was in a westerly direction on Bloomfield Avenue. Worthington, Jr., was driving. Miss McHorney sat along side of him, and Mr. and Mrs. Hala were in the rear seat. After passing through the business section of Caldwell, Bloomfield Avenue is seventy feet wide, paved with asphalt and with a thirty foot roadway on each side of a park area, ten feet wide, in the center. At a point where the road goes down a grade of about six per cent. and curves to the left the automobile left the road, its right wheels going over a four inch curb on the right side, and continued with two wheels on the road and two wheels on the dirt sidewalk, turning left with the curve, traveling a distance of fifty-seven feet when it came into head-on collision with a large tree. This tree was about 150 feet from where Worthington says he first felt the car swerve to the right. The roadway at that place was well lighted. The two women died as a result of their injuries, one while being taken to the hospital, and the other within a few hours of reaching there. Both men suffered broken legs and other injuries. Hala was confined to the hospital for over a year and a half. One of his legs became infected, and amputation was necessary.
His expenses for doctors, nurses, hospital, &c., were about $12,000. Suits were brought on behalf of the next of kin of the two women under the Death Act and were tried together with the Hala suit before Judge William A. Smith in the Essex Circuit. The verdicts in those cases were set aside by the trial court on rules to show cause because of their inadequacy. We have no concern with those cases, the appeal being in the Hala case only. The only witnesses to the accident were Hala and Worthington, Jr. Both made signed statements within a day or so of the accident to the local police and later to the prosecutor's officers, and both testified at the trial. There were other witnesses who testified to what they observed upon coming upon the scene shortly after the accident. There was also evidence of the condition of the automobile, of marks on the curb and tire marks indicating the course the automobile traveled after it left the road, measurements of distances, &c. Photographs and a diagram were also in evidence.
It appears that Worthington, Jr., had suffered from birth with defective eyesight and that he has worn glasses since he was four years old. He had inward strabismus of the left eye, congenital cataracts on both eyes, and near-sightedness in both eyes. He left college in February of 1937, returning in September of 1938, so that he might have necessary operations on his eyes. In all there were seven operations between February, 1937, and August, 1939, some to correct the strabismus and others for the cataracts. The last operation was two weeks before the accident, at which time he was confined to the hospital for one week, and had an appointment with the doctor to have his eyes examined the day after the accident. He wore one kind of glasses for reading and another kind for distant use. He had the latter pair on at the time of the accident. The expense of the eye treatment and operations was borne by his father who knew the nature and extent of the eye condition, having been so informed by the attending doctor. Worthington, Jr., testified that the operations had improved his eye condition and that with the use of his glasses he could see quite well but that even so, he did not have normal vision. He demonstrated his ability to see
objects in the court room by tests made during the trial. His father was prevented by illness from testifying. The eye specialist who had operated and treated the eyes did not testify, nor was his absence explained. There was testimony of the drinking of intoxicating liquor during the evening at the Hala home, but no testimony that anyone was affected thereby. Two rye highballs were served to each, the members of the party leaving before the second drink had been consumed. Hala testified that Worthington, Jr., was not affected by the drink and that he drove normally, although he did say that he had had two drinks. Worthington, Jr., said that the liquor had not affected him and that he had not in fact had two drinks but, on the contrary, had only taken but a few sips from the first drink that was served. The plaintiff did not allege intoxication and the case was not tried on that theory, and argues that neither of the men was in fact under the influence of liquor. Worthington, Jr., in the first statement made by him on the day of the accident to the local police officer said that he had no recollection of anything after he had left the Verona refreshment stand. To the prosecutor's officer later he said and so testified that he was driving twenty-five to thirty miles per hour and that when he reached the curve in the road, he tried to turn left but that the car did not respond, the steering wheel turning in his hands, and he ...