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Julius Reiner Corp. v. Sutton

Decided: November 19, 1952.


McGeehan, Jayne and Goldmann. The opinion of the court was delivered by Goldmann, J.A.D.


[23 NJSuper Page 94] This appeal challenges the judgment entered in plaintiff's favor by the judge of the Burlington County District Court sitting without a jury. No stenographic record was made of the proceedings in the court below. The appeal is before us on a "Statement of the Evidence or Proceedings" settled and approved by the trial judge, and filed pursuant to Rule 1:2-23, incorporated by reference in Rule 4:2-6. The scope of our factual review is necessarily confined to that statement.

The action arose out of an intersectional collision between plaintiff's automobile, driven by Mrs. Edith Reiner, an officer of the corporation, and a truck owned and operated by defendant. The complaint and counterclaim respectively demanded judgment for property damage suffered by the parties. The only witnesses at the trial were Mrs. Reiner and defendant.

The accident occurred at midmorning of May 3, 1951 at the intersection of State Highway Route 25 and Columbus Road in Burlington, N.J. Route 25 is a north-south dual highway, with a two-lane, 20-foot paved roadway on each side of a 12-foot grass center island. There are 7-foot shoulders on the outside margins of the paved areas, and a 2- or 3-foot shoulder next to the island. Columbus Road runs east and west, and intersects Route 25 at about right angles; the entire intersection is paved, the center island terminating at the north and south sides of the intersection.

Mrs. Reiner testified she was driving south on Route 25 at about 45 miles an hour in her right-hand lane. When she was about 150 feet north of the Columbus Road intersection she saw defendant's truck on the east side of Route 25, just starting across the northbound roadway and moving at a speed of not more than 10 miles an hour. She blew her horn and slowed down. She thought the truck would stop at the center island, but it continued across the northbound lanes past the island and proceeded to cross the southbound lanes. To avoid striking the truck she braked her car and turned to the right, but the truck struck the left side of the automobile. Mrs. Reiner further testified that after the collision she asked defendant why he didn't stop when she blew her horn, and he replied that he thought he could get across the highway. The exhibits show that the point of impact of the truck was on the right side, 1 1/2 to 2 feet from the front end.

Defendant, a 71-year-old farmer, testified that he was driving west on Columbus Road and, on reaching Route 25, came to a full stop to allow northbound cars to pass. He

then started to cross at 10 miles an hour and at that moment saw plaintiff's car 1,000 or more feet north of the intersection. He next observed the car about 300 feet away when he reached the center of the highway. He continued across and made no further observations until his truck was struck on the right side, just as the front end had cleared the southbound lanes. Defendant further testified that he made no estimate as to the speed of the automobile, either when he first saw it or last saw it; he could not say how fast it was coming. He did not hear the horn blown but would not deny that it had been blown. He knew that Route 25 was a very busy highway and that it was dangerous to cross it.

The district court judge found that "defendant was guilty of negligence and that plaintiff was free of negligence," and directed entry of judgment in favor of plaintiff for $991 on the complaint, and judgment of no cause of action against defendant on his counterclaim.

The issue here is solely factual. Defendant urges this court to exercise its authority under Rules 1:2-20 and 4:2-6 and make new findings of fact. He asks that we declare that plaintiff's driver was guilty of contributory negligence and reverse the judgment below. On a review of any cause involving issues of fact not determined by the verdict of a jury, Rule 1:2-20 reminds us that due regard shall be given to the opportunity of the trial court to judge of the credibility of the witnesses. "Beyond that, every intendment is in favor of the judgment under review, and we should not disturb the court's finding of fact unless we are well satisfied that the finding is a mistaken one." Capone v. Norton , 11 N.J. Super. 189, 193 (App. Div. 1951), affirmed 8 N.J. 54 (1951). We recognize the superior opportunity of the trial judge to observe the demeanor of the witnesses and judge of their credibility, and thus to estimate the preponderant weight of the believable testimony. Goldman v. Shapiro , 16 N.J. Super. 324, 326 (App. Div. 1951); cf. In re Perrone , 5 N.J. 514, 523-524

(1950). As the court said in Trusky v. Ford Motor Co. , 19 N.J. Super. 100 (App. Div. 1952), at pages 103-104:

"The permissive power conferred by the rules is exercised in the sound discretion of this court only where from an examination of the record it is manifest that the findings of fact under review are so plainly unjustified by the evidence that ...

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