On certification to the Superior Court, Appellate Division.
For affirmance -- Chief Justice Vanderbilt, and Justices Oliphant, Wachenfeld, Burling and Jacobs. For reversal -- Justice Heher. The opinion of the court was delivered by Wachenfeld, J.
The query here is whether or not the question of "unavoidable accident" was properly submitted to the jury and if error was committed in the court's definition of "unavoidable accident."
A brief resume of the facts helps clarify the issues. The plaintiffs, husband and wife, were passengers in a taxicab proceeding north on Atlantic Avenue in Haddonfield, New Jersey, the cab being operated by the defendant Pohl. It collided with a fuel truck of the defendants Fluharty and this action is for injuries sustained by Mrs. Hodgson.
Atlantic Avenue is a little-used highway, dirt-surfaced and rough. A railroad track parallels it on the west side of the street while on the east is a fuel depot with a driveway running into Atlantic Avenue. The building on the southerly side of the drive extends almost to the roadway of Atlantic Avenue, obstructing the view of oncoming traffic from that direction.
The oil truck was entering the highway from that driveway as the cab approached. The taxi driver saw the front of the truck emerging about ten feet away. He contends he was
driving slowly and admits he could have stopped and so avoided the accident. By the time he realized the truck was not going to stop, he "was practically across the path of the truck so I couldn't possibly stop and if I had stopped I would have been struck anyway." He therefore "put on gas to try to beat him across."
The truck driver admits he could not see to his left as the building obstructed his view. Despite this inability to see, he nevertheless continued into the roadway without sounding his horn. As the taxi endeavored to pass in front of him, he applied his brakes but it was too late to prevent a collision. His front bumper struck the rear fender and hub cap of the cab. The blow apparently was not severe but it broke the truck's bumper bracket and dented the taxicab fender and hub cap.
The record does not contain the medical testimony in reference to the injuries sustained, so we have no knowledge of the extent thereof nor the alleged exaggeration of the effects claimed.
The jury returned a verdict of no cause of action in favor of all defendants. Since the trial the husband has died and this appeal is pursued by Mrs. Hodgson and the executors of the husband's estate.
Following the verdict of no cause of action as to all defendants, a motion for a new trial on behalf of the plaintiffs was denied, resulting in an appeal to the Appellate Division, where the judgment was reversed and a new trial ordered.
The court based its conclusion on two grounds: first, in giving instructions in reference to "unavoidable accident," the trial court committed prejudicial error "because the testimony as to how this mishap occurred negated the existence of the element necessary to support a finding that the accident was unavoidable," and, second, the trial court used the terms "unavoidable" and "inevitable" interchangeably as though they were synonymous. The Appellate Division found ...