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Campbell v. Mestice

Decided: November 6, 1953.

DONALD CAMPBELL, PLAINTIFF-RESPONDENT,
v.
WILLIAM R. MESTICE, DEFENDANT-APPELLANT



Clapp, Goldmann and Ewart. The opinion of the court was delivered by Goldmann, J.A.D.

Goldmann

Defendant appeals from a judgment of the Essex County District Court in plaintiff's favor in a rear-end automobile collision case.

Plaintiff was driving in a northerly direction on Route 35 in a line of traffic. The automobile ahead of him, driven by one Wallis, stopped suddenly; plaintiff stopped quickly but did not have time to give any hand signal; defendant, who was driving his car immediately behind plaintiff, struck the rear of plaintiff's car and drove it into the rear of the car preceding plaintiff.

Plaintiff testified that his car had stopped before defendant's car hit him, and this was corroborated by his passenger. Defendant testified he had been following plaintiff for about 10 miles at a distance of 15 to 25 feet, that plaintiff suddenly stopped, that he heard a crash and applied his brake, but not in time to stop before his car ran into the rear of plaintiff's. There was some corroboration from defendant's niece who was riding with him. However, she also testified that her uncle's car was a length or more behind plaintiff's, her uncle's speed was 40 miles per hour and there was a heavy impact between his car and plaintiff's. Defendant stipulated that the damages to plaintiff's car resulting from the accident amounted to $528.46.

The trial judge entered judgment for plaintiff. In the statement on appeal settled by the court, the trial judge

declares he found "the plaintiff and his witnesses very much more credible than the defendant and the one witness he produced." He found "especially incredible" a conversation testified to by defendant and in part by his niece, which in effect indicated that plaintiff said he was the negligent party. The trial judge expressly found that the parties had been travelling in a line of traffic for some distance and apparently at a speed of 30 to 40 miles an hour; that the line of traffic stopped suddenly and plaintiff stopped before he hit the car ahead of him; that defendant was negligent in following plaintiff's automobile too closely, having due regard for the speed of the preceding vehicle and traffic conditions; and that defendant's negligence was the proximate cause of the accident.

On analysis, the questions raised by defendant may be reduced to four: (1) the trial court erred in denying defendant's demand for a jury; (2) it erred in refusing to place the case on the military list until one of plaintiff's witnesses returned from service; (3) the court failed to give proper consideration to the answers to interrogatories made by the driver of the automobile directly preceding plaintiff's car; and (4) the evidence did not support the findings of fact and the judgment.

Defendant was served with a summons and complaint on October 15, 1952. Appearance was entered the next day. On December 8, 1953 defendant's attorney filed a counterclaim for property damage to defendant's car, and on the same day the attorney gave written notice to the clerk of the county district court that defendant demanded a jury trial of the cause. The attorney stepped out of the case on December 10 when he consented to the substitution of defendant as attorney pro se in his place and stead. Defendant on December 12, 1952 served notice that he would apply before the presiding judge of the Essex County District Court on December 18 for an order granting his demand for a trial by jury. Shortly thereafter he served another notice that he would apply on January 5, 1953 for an order suppressing the complaint because of plaintiff's failure to answer interrogatories

served on October 17, 1952, and would also request a jury trial on the counterclaim.

The court denied the motion for a jury trial on January 5, as well as the motion to suppress the complaint, and directed plaintiff to answer the interrogatories. On February 10, 1953 the court denied defendant's motion to place the case on the military list as requested under Rule A -22. A month later the court heard defendant's motion for approval of interrogatories, under Rule 7:6 (now R.R. 7:6) and under Rule 3:16-23 et seq. (now R.R. 4:21-1 et seq.). After considering objections to the interrogatories, it helped defendant frame them, ordered that they be mailed within seven days because the case had already been adjourned several times, and again adjourned the trial date. When, on March 23, defendant filed a paper entitled "Appointment of Judicial Officer With Authority to Take Depositions in Answering Annexed Interrogatories" -- these interrogatories were addressed to Wallis, driver of the car that preceded plaintiff's automobile and then serving in the armed forces in Alaska -- the court directed the clerk to return the paper to defendant for failure to mail the interrogatories within the seven-day period fixed.

The case was heard by the court, sitting without a jury, on April 6, after defendant's request for a further adjournment had been denied. It ...


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