On appeal from Superior Court, Law Division.
McGeehan, Colie and Eastwood. The opinion of the court was delivered by Colie, J.A.D.
[6 NJSuper Page 109] Edith Ferry, administratrix ad prosequendum of the estate of John Ferry, deceased, instituted suit against George Settle, Fischer Baking Company, Hans Schirber, Central Greyhound Lines, Inc., of New York, and Francis Heasley, for damages arising from the death of John Ferry, alleged to have resulted from the negligence of one or all of the five defendants. The pleadings and the pretrial order confined the issues to negligence of the defendants, contributory negligence of the decedent and joint enterprise
as between the defendant, Settle, and decedent. After trial, the jury returned a verdict against Fischer Baking Company and Central Greyhound Lines, Inc., and the respective drivers of their cars, and a verdict in favor of the defendant, Settle. Thereafter the court, on motion of Fischer Baking Company and Central Greyhound Lines, Inc., reduced the verdict to $85,450. From the judgment entered thereon, Fischer Baking Company, Central Greyhound Lines and their respective drivers appeal. Three grounds of appeal argued for a reversal are common to all four defendants. They are (1) that the verdict was contrary to the greater weight of the evidence; (2) that the court erred in charging that "the sudden emergency" doctrine was applicable to the defendants or any one of them; (3) that the court erred in refusing to charge the doctrine of contributory negligence. Fischer Baking Company and Hans Schirber also argue that the court erroneously permitted the defendant Heasley to testify to a statement of the defendant, Settle, that the accident was not the fault of either.
On July 8, 1947, at about 7 A.M. the plaintiff's decedent was in a car owned by George Settle which the latter was driving easterly on Route 6, Troy Hills, New Jersey. Route 6 at that point has two lanes for east-bound traffic and two lanes for west-bound traffic, separated by a grass plot. At intervals there are cross-overs to enable west-bound traffic to get into the east-bound lane and vice versa. On the right or southerly side of Route 6 and about 300 feet west of the point where the accident occurred is located the Troy Hills Diner. As Settle approached from the west, driving in the center of the two lanes for east-bound traffic, the Fischer Baking Company truck, driven by Schirber, came out of the driveway at the Troy Hills Diner and turned right on Route 6 and proceeded a few hundred feet to a gap in the center plot dividing the east and west-bound lanes. The Fischer truck crossed the two east-bound lanes at a diagonal, turned into the gap and came to a stop to permit a west-bound car to pass before entering the west-bound lane. When it stopped in the cross-over, its rear projected slightly into the fast or
more northerly lane for east-bound traffic. Schirber testified that when he pulled out of the driveway, he looked to the west and saw no cars. In the meantime, the Settle car was traveling in the fast lane next to the dividing plot and when Settle saw the Fischer truck turn into the cross-over, he swerved to his right, then sharply to his left and the right front of his car struck the Fischer truck and threw the former into the path of the on-coming Greyhound bus which was being driven by Heasley in an easterly direction Just prior to when the Settle car suddenly came over into its path, the speed of the bus had been reduced to 20 or 25 miles an hour. In an attempt to avoid striking the Settle car, Heasley swerved to the right but the left rear of the bus struck the Settle car and as a result thereof plaintiff's decedent received fatal injuries. From this sketch of the happenings immediately prior to the accident, it is clear that a jury question was presented as to the negligence or lack of negligence of each of the defendants. Without going into the details, it may be said that doubt was cast on the veracity and the accuracy of the observations of some of the witnesses, but a reading of the record leaves no doubt that the verdict was not against the weight of the evidence.
The case is barren of evidence from which the jury could find that plaintiff's decedent, Ferry, was guilty of contributory negligence. In the absence of such evidence there was no error in the refusal of the trial judge to charge on that subject. A trial court has no duty to charge an abstract principle of law without applicability to the evidence.
The court charged that "Where a traveler or a motorist upon a highway, without any fault on his part, is placed in a position of imminent peril, all that is required of him in such an emergency is that he act with ordinary care under the circumstances. The law will not hold him guilty of negligence if he does not select the very wisest course or makes an honest mistake of judgment in such sudden emergency.
"Now, whether such an emergency existed and whether the motorist acted with due care in the circumstances are questions of fact for you to determine. In other words, you first
have to determine whether an emergency really existed in so far as any of these defendants are concerned, and then determine whether or not that emergency was without fault upon the part of the defendant which you then have under scrutiny, because this doctrine of sudden emergency is founded upon the assumption that the person's position or the motorist's position is not attributable to his own fault. The exoneration of the doctrine does not apply when the driver's negligence creates or contributes to the exigency, for then there ensues a precedent actionable wrong, distinct from consideration of a later choice of conduct in that emergency.
"And in the final analysis, members of the jury, I think the doctrine, as you shall hear me a little later describe it to you, is no more than an application of the rule of negligence, that a man must use the degree of care in the operation of the automobile which the ordinary, prudent man would have ...