Decided: September 22, 1949.
IRVING ZOCKS, PLAINTIFF-APPELLANT,
WILLIAM E. HARPER, DEFENDANT-RESPONDENT
Jacobs, Donges and Bigelow. The opinion of the court was delivered by Donges, J.A.D.
[5 NJSuper Page 81]
Suit was brought in the Morris County District Court by plaintiff-appellant for damages to his automobile sustained in a collision between his car and that driven by defendant-respondent. Defendant counterclaimed for damages to his automobile. The case was tried by the trial judge, sitting without a jury, and he rendered a judgment of no cause of action on the plaintiff's claim and no cause of action on the defendant's counterclaim, upon determination that both parties were guilty of negligence and that such negligence of both plaintiff and defendant contributed to the happening of the accident.
From the state of case, fixed by the court, it appears that plaintiff was driving on Central Avenue, in Stirling, approaching Long Hill Road; that a bus preceded him into Long Hill Road, turning right from Central Avenue; that plaintiff intended making a left-hand turn into Long Hill Road, but stopped to permit a car coming from his right to pass, and that just as he was getting ready to put his car in first gear, his car was struck at the right fender by defendant's car coming from his left. It further appeared that plaintiff's car was on the left side of Central Avenue, and, at the time of collision, was four and a half feet into Long Hill Road;
[5 NJSuper Page 82]
that defendant's car was proceeding at a speed of about 15 miles per hour, and was two feet from its right side of the road; that defendant saw plaintiff's car when 10 to 15 feet from it, but could not stop in time to avoid the collision, nor could he turn his car to avoid the collision because a car was coming toward him on his left, in a street that had only two lanes, and not sufficient width to permit him to turn to his left. From the record, as submitted, it appears that plaintiff did not make due allowance for traffic coming from his left in a narrow street, but drove out into such street and stopped to permit traffic from his right to pass, without observing the oncoming car from his left. From the testimony on behalf of plaintiff, it appears that he had just come to a stop and was about to shift into low gear to proceed when the car coming from his right had passed, and, therefore, the defendant's car was not far away when plaintiff drove into its path. He, apparently, drove into and stopped in the way of an oncoming car and took the chance of a collision.
From the record before us, we conclude that the determination of the trial judge was supported by the facts, and that the judgment under review should be affirmed.