Freund, McLean and Schettino. The opinion of the court was delivered by Schettino, J.s.c. (temporarily assigned). McLean, J.s.c. (temporarily assigned) (dissenting).
Plaintiffs, Grace M. Lehman and William A. Lehman, her husband, appeal from a judgment for defendants entered upon a jury's verdict. Mrs. Lehman was a passenger for hire in a taxicab owned by defendant Georgia Anderson, and operated by defendant Elvira Boyd. The sole question is whether it was error to leave the issue of contributory negligence to the jury.
Mrs. Lehman testified that she was thrown to the floor of the vehicle when defendant driver stopped suddenly to avoid colliding with another automobile. There was no physical contact between the cars.
The versions of plaintiff passenger and defendant driver may be briefly stated. Mrs. Lehman, age 58, with no driving experience, testified that defendant Elvira Boyd was driving along Walnut Avenue, Cranford, N.J. at a "nominal" speed of 35 miles an hour, approaching a "Y" intersection with Blake Avenue; that as the taxicab neared the intersection
defendant driver started to bear left of the midline of Walnut Avenue to turn left into Blake Avenue; that at that point plaintiff Mrs. Lehman saw a car coming out of Blake Avenue 35 to 40 feet away; that she became "scared" and "I was just going to tell her to look out when she made a sudden stop, and I was thrown from my seat."
Defendant Elvira Boyd testified that she was proceeding at 20 to 25 miles per hour as she approached what she described as "a busy intersection"; that she looked down Blake Avenue and saw some parked cars, but none moving; that as she turned into Blake Avenue she saw a car four to five feet away, pulling out from the curb or from Blake Avenue, apparently to turn into Walnut; that to avoid a collision she stopped "suddenly," within "about 2 inches" which distance she described as figurative.
Nothing in defendant's, Elvira Boyd's, version of the occurrence could support the conclusion that plaintiff passenger was guilty of contributory negligence. Defendants do not so suggest, but rather contend plaintiff's testimony supplies sufficient evidence. We think not. Plaintiff passenger testified she observed a danger and as she was about to exclaim the brakes were applied. There is no basis for an inference that any action by her would have altered the event.
It is, of course, true that a passenger has a duty to exercise due care for his own safety. The area of controversy lies, not in this abstract proposition, but rather in its application to varying situations. The most recent expression of our Supreme Court, in Kaufman v. Pennsylvania R. Co. , 2 N.J. 318, 323 (1949), was as follows:
"The duty of an invitee to warn the driver is only of a known and appreciated peril if a reasonably prudent person would have given such warning under the same or similar circumstances, and the risk could thereby have been averted."
The court held it was error to leave the issue of contributory negligence to the jury where there was no proof that the passenger knew and appreciated the peril.
We take it that at least in the absence of extraordinary circumstances a passenger may rely ...