McGeehan, Jayne and Wm. J. Brennan, Jr. The opinion of the court was delivered by William J. Brennan, Jr., J.A.D.
[16 NJSuper Page 89] Plaintiffs, husband and wife, brought this action to recover damages for personal injuries allegedly suffered on November 28, 1947, by Mrs.
Hodgson when a taxicab of defendant Pohl in which she and her husband were passengers collided with a fuel oil truck of defendants Fluharty on Atlantic Avenue, Haddonfield. Upon the trial in the Law Division, Camden County, plaintiffs met with jury verdicts of no cause for action as to all defendants. The husband has died since the trial and this appeal from the ensuing judgment is pressed by Mrs. Hodgson and the executors of his estate.
At the time of the accident Atlantic Avenue was a little used thoroughfare, dirt-surfaced and very rough and washed out in places, and had no curb on either side. The west side of the street ran along railroad tracks. On the east side, back of some buildings, was a fuel oil depot from which, between two of the buildings, a driveway ran into Atlantic Avenue. The building on the south side of the driveway, a two-story storehouse, extended almost to the roadway of Atlantic Avenue. The taxicab was proceeding north on Atlantic Avenue and neared the driveway as the oil truck was about to enter Atlantic Avenue from the driveway. The taxicab driver testified that when the taxicab was within a car's length of the driveway he saw the front of the truck emerging slowly some ten feet from the roadway. He too was driving slowly and admitted he could have stopped but said, "I didn't realize he wasn't going to stop, so I didn't try to stop," but "put on gas and tried to beat him." The truck driver admitted that he could not see to his left as he sat in the cab of the truck because the storehouse obstructed his view, and yet that, without sounding his horn, he continued into the roadway. He applied his brakes as the taxicab passed in front of his truck but too late to prevent a contact of the right rear fender and hub cap of the taxicab with the right end of the truck's front bumper. The blow was a glancing one, breaking the truck's right bumper bracket and denting the taxicab fender and hub cap. The damage to the taxicab was repaired at a cost of $7.
The answer of each defendant denies negligence and by a separate defense pleads that the collision was caused by the
negligence of the other. The pretrial order also recites that "both defendants deny any negligence and blame the other." The defense of unavoidable accident is not expressly pleaded in either answer, nor is that defense suggested in the pretrial order.
The charge instructed the jury as to the duties of care of the respective drivers, as to plaintiffs' burden to prove their case upon the issues of negligence, proximate cause and damages, and that if plaintiffs were entitled to verdicts it was for the jury to say whether the verdicts should go against both or only one of the defendants. The charge, however, also included the following:
"'* * * and if the accident complained of was inevitable it is not a case of negligence. An accident is inevitable if the person by whom it occurs neither has or is legally bound to have sufficient power to avoid it or prevent its injury. In such a case the essential element of a legal duty is lacking, and it cannot therefore be a case of negligence.'"
and, later, the following:
"I have already charged with regard to this matter, but I am going to charge it again. 'If you find as a fact that the accident was unavoidable, then I charge you your verdict must be in favor of all the defendants named in this suit. The mere happening of an accident is not evidence of negligence.'"
Plaintiffs contend that in giving the quoted instructions the trial court committed prejudicial error. We are satisfied that this is so. We are not persuaded that the error lies, as plaintiffs urge, in the giving of instructions upon an issue not covered by the pleadings or pretrial order. By the great weight of authority, the defense of unavoidable accident, if raised by the evidence, is available under a general denial of negligence and need not be affirmatively pleaded. This is because an unavoidable accident is a direct refutation of the charge of negligence which it is plaintiff's burden to sustain. Seele v. Purcell , 45 ...