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Stevens v. Roettger

Decided: October 16, 1952.

CHARLES E. STEVENS, PLAINTIFF-APPELLANT,
v.
MARTIN ROETTGER, DEFENDANT-RESPONDENT



Jayne, Proctor and Schettino. The opinion of the court was delivered by Jayne, S.j.a.d.

Jayne

The sky was overcast and the pavements of the sidewalks and streets were blanketed with a cover of watery snow at 1:15 on the afternoon of March 3, 1951, when the plaintiff endeavored to walk within the delineated boundaries of the cross-walk from the southerly to the northerly side of East Ridgewood Avenue in the Village of Ridgewood. Before departing from the curb he either did or did not consciously recognize that a passenger motor vehicle owned by the defendant George Roettger, and on this occasion being operated by his son Martin, also a defendant, was parked along the southerly curb of East Ridgewood Avenue facing east with its rear close to the easterly boundary line of the cross-walk.

Martin, having entered the vehicle a few moments previously, started the motor, made observations to detect the presence of any pedestrians behind his car, first by means of the mirror attached to the left side of the vehicle and then by looking through the windows on the right side. His view through the window in the back of the car was impeded by the accumulated ice upon the glass. He did not use the horn to give any audible signal. He operated the vehicle backward a distance of perhaps two or three feet where it collided with the plaintiff.

The mishap occasioned the present action in which the defendant George Roettger was discharged from liability by the court and Martin by the jury. An application by the plaintiff for a new trial was denied.

In prosecuting the present appeal the plaintiff asserts that he suffered manifest harm in consequence of the refusal of the trial judge to embody in his instructions to the jury

the second paragraph of the second request to charge submitted to the court by the attorney of the plaintiff during the summation of counsel. Vide, Rule 3:51-1; J.B. Wolfe, Inc. v. Salkind , 3 N.J. 312 (1949).

The paragraph of the request which the plaintiff sought to promote at the trial is a quotation of the comment made by the appellate court in the case of Melia v. Malicke Bus Co. , 7 N.J. Misc. 859, 147 A. 467 (Sup. Ct. 1929), which reads:

"It is claimed that the plaintiff was guilty of contributory negligence. We think this claim altogether unsubstantial. A pedestrian crossing such a street has about all he can do to see vehicles moving forward on his left and other vehicles moving forward on his right without paying special attention to a standing bus pointed away from him, and with respect to which he was entitled to assume that in case it was backed up, the mandatory provisions of this statute would be reasonably obeyed."

It is elementary that a trial judge is not obliged to charge matters or comment with regard to the facts of the case, much less comments made by a court relative to the facts of some other case. In his charge to the jury in the present case the trial judge defined contributory negligence and its application in a manner which counsel for the plaintiff-appellant acknowledges in his brief "would have been sufficient" in the absence of the specific request.

Assuredly what the reasonably prudent individual would do or refrain from doing in our modern environment of hazards depends upon the existing circumstances of each particular case. It is not difficult to envision a distinct difference in the course of behavior of the reasonably cautious person in crossing a quiet street in the little village of Delldale and that employed in an endeavor to cross Broadway at 42nd Street in the City of New York. This comparative illustration displays the impropriety of transplanting as a standard comment the appraisal of the hazards and distractions of one case to another.

It is significant to notice that the trial judge adopted the first paragraph of the request which informed the ...


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