Eastwood, Goldmann and Francis. The opinion of the court was delivered by Francis, J.c.c. (temporarily assigned).
This is a street intersection, automobile accident, negligence case. The three respondents here sought and recovered damages against appellant.
It appears that respondent Helen W. Davis was driving her automobile in an easterly direction on Route 40 in Marlton, Burlington County, New Jersey. At the intersection of Maple Avenue, a stop street, she came into collision with a car driven by the appellant.
In the collision Mrs. Davis was injured and her car damaged. Vera Doughten, an infant, 12 years of age, who was a passenger, was also injured. Action was brought by Mrs. Davis to recover on account of her injuries, expenses and losses, and to recover for her automobile damage. The infant, by her father as guardian ad litem , sought damages for her injuries, and her father, Ford Doughten, individually joined as plaintiff, seeking recovery only for medical expenses incurred or to be incurred in order to cure his daughter's injuries.
Trial of the case resulted in the following judgments: Vera Doughten, by her guardian, $10,000, Ford Doughten, $1,250, and Helen Davis, $5,000.
On this appeal it is argued that prejudicial error was committed in the charge of the court and that the verdicts are excessive.
References are made to certain passages in the charge of the court, which, it is asserted, plainly indicated to the jury the feeling of the court that the defendant was guilty of negligence and the plaintiffs free from contributory negligence. And it is urged that these statements must have aroused the passion or prejudice of the jury against the defendant.
It is true that the court did make some comment on the testimony, largely in interrogative and argumentative form, which seemed favorable to the plaintiffs. To illustrate: there was substantial and disinterested testimony to the effect that Gibbs had brought his car to a stop at the intersection of Maple Avenue and Route 40, in obedience to the stop sign, and then at a time when reasonable prudence would have dictated remaining at a standstill, he started up and came into collision with the Davis car. In charging on this subject the court said: "* * * and didn't she have a right to assume that the defendant would stay where he was, stay in a stopped position until she got by? That is for you to determine."
There was another statement of like character as well as some indication of strong doubt as to whether there was any evidence of contributory negligence on the part of the passenger, Vera Doughten, or the driver, Helen Davis. However, these questions, even the issue of contributory negligence of the infant passenger, of which we see no evidence in the record, were submitted to the jury for consideration.
In passing upon the propriety of a charge regard must be had to the whole of its contents. If upon such examination there appears no prejudicial error, reversal of the judgment is not justified. Vadurro v. Yellow Cab Co. , 6 N.J. 102 (1950).
The trial court's instructions with respect to the definitions of negligence and contributory negligence are not
challenged. And with respect to the evidence in the case, he said:
"Now, ladies and gentlemen, you are the sole judges of the facts. Anything that the Court, anything that counsel has said to you during the entire trial is not controlling upon you. You are the judges of the facts, it is your recollection of all the testimony. You will take all the exhibits, you will take the testimony of the ...