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Brendel v. Public Service Electric and Gas Co.

Decided: December 4, 1953.

DOROTHY BRENDEL, ET AL., PLAINTIFFS-RESPONDENTS,
v.
PUBLIC SERVICE ELECTRIC AND GAS COMPANY, ETC., ET AL., DEFENDANTS-APPELLANTS



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

Ewart

Defendants appeal from a final judgment entered against them in the Superior Court, Law Division, based on the verdict of a jury, and from an order by the trial court denying defendants' motion for a new trial.

This suit arose out of a collision between two automobiles at a street intersection in New Brunswick, New Jersey, on April 2, 1952. Plaintiff Dorothy Brendel, accompanied by her four infant children, viz. , James, age 7, Ronald, age 6, Kathleen, age 4, and George, Jr., age 9 months, was driving the automobile of her husband, the plaintiff George Brendel, northwestwardly (designated in the proofs as northwardly) on Suydam Street at about 12:20 P.M. on the date mentioned. The weather was clear, the street dry, and the visibility good.

At the same time defendant George D. Ivins, an employee of the corporate defendant, was driving a light truck with a closed panel body southwestwardly (designated in the proofs as westwardly) on Codwise Avenue. The streets intersect at right angles. Suydam Street is a so-called "thru" street of a width of 47.7 feet between curbs and Codwise Avenue is a so-called "stop street" with a width of 36 feet between curbs. There is a stop sign erected on the northerly side of Codwise Avenue, adjacent to the curb, and approximately 33 feet east of the easterly curb line on Suydam Street. Drift Street, running nearly parallel to Codwise Avenue, intersects Suydam Street to the south of Codwise Avenue, it being approximately 88 feet measured along the easterly curb line of Suydam Street from the southerly curb line of Codwise Avenue to the northerly curb line of Drift Street. There is a gasoline station hereinafter mentioned located on the northwesterly corner of the intersection and at the

southeasterly corner of the intersection there is located a building, two or more stories in height, which comes out nearly to the sidewalk and offers some interference with the view to the south on Suydam Street of one driving westwardly on Codwise Avenue approaching the said intersection.

The two automobiles collided in the intersection, the front of the Brendel car having struck the left side of defendants' truck at a point back of the front door giving access to the driver's seat and in front of the rear wheel of the truck. The collision occurred somewhat to the right of the center line of Codwise Avenue and likewise to the right of the center line of Suydam Street at a point marked by the plaintiff Dorothy Brendel on a map admitted in evidence and marked Exhibit P-1, which point is approximately 16 feet west of the easterly curb line of Suydam Street. Another witness, Officer Haskins, marked on said map the point of collision as being approximately 19 feet west of said curb line. And according to the testimony of the defendant Ivins, the collision occurred at about the time the rear wheel of his truck was over a manhole which is located approximately in the middle of Suydam Street and which would be a few feet farther to the west than the points indicated by the plaintiff Dorothy Brendel and by Officer Haskins. After the initial collision, the two cars described an ark and came to a stop with the truck up against the curb at the northwesterly corner of the intersection adjacent to the gasoline station and with the front of plaintiff's automobile pressed against the left side of the truck. Neither car upset.

Suit was instituted against both George D. Ivins, driver of the truck, and Public Service Electric and Gas Co., his employer, by Dorothy Brendel as plaintiff, who sought to recover for personal injuries, pain and suffering, etc.; on behalf of the infant Kathleen Brendel, plaintiff, to recover for injuries; on behalf of the infant James Brendel, plaintiff, to recover for injuries; and by George Brendel, plaintiff, husband of the plaintiff Dorothy, to recover for expenses incurred for medical attention, hospitalization, etc., for his wife and children, for the cost of employing domestic help

while his wife was incapacitated, for loss of his wife's services and for damage to his automobile.

The case was tried at New Brunswick before the court and a jury and resulted in a verdict against both defendants in favor of Dorothy Brendel for $4,000, in favor of George Brendel, her husband, for $1,479, and verdicts of no cause for action in favor of the defendants and against the infant plaintiffs Kathleen Brendel and James Brendel. Also a verdict of no cause for action upon a counterclaim of the defendants against George and Dorothy Brendel.

After the verdicts defendants moved for a new trial on the grounds that: (1) the verdicts in favor of the plaintiffs Dorothy and George Brendel were against the weight of the evidence, (2) the verdicts were for excessive amounts, (3) the verdicts in favor of the plaintiffs Dorothy and George Brendel were the result of mistake, partiality, prejudice and passion, (4) the verdicts in favor of plaintiffs Dorothy and George Brendel were contrary to the charge of the court, and (5) the verdicts rendered by the jury were inconsistent and irreconcilable. The motion was duly argued and resulted in the entry of an order denying the motion for the reasons set forth in a memorandum filed by Judge Kalteissen.

On this appeal defendants argue the following reasons for reversal of the judgments: (1) that the verdicts were irreconcilable and inconsistent, (2) that the verdicts rendered in favor of Dorothy and George Brendel were against the weight of the evidence, (3) that the verdicts rendered were contrary to the charge of the court, and (4) that the trial court committed error in denying defendants' motion for a new trial. We deal with points argued by defendants in the order above set forth.

First: That the verdicts were irreconcilable and inconsistent. Under this point defendants argue that the finding of the jury in favor of Dorothy Brendel was tantamount to a conclusion that the defendants were guilty of negligence which was the proximate cause of the accident and that the plaintiff Dorothy Brendel was free of contributory negligence, and that this being so, a verdict in favor of Dorothy

Brendel, the driver of the car, was entirely inconsistent and irreconcilable with verdicts in favor of the defendants and against the infant passengers, Kathleen and James Brendel. In support of that argument, defendants cite the following cases: Doherty v. Boyajian , 9 N.J. Misc. 263 (Sup. Ct. 1931); Lanning v. Trenton, etc., Traction Corp. , 3 N.J. Misc. 1006 (Sup. Ct. 1925); Rich v. Central Electrotype Foundry Corp. , 121 N.J.L. 481 (Sup. Ct. 1939); Ruby v. Quotidian , 14 N.J. Misc. 227 (Sup. Ct. 1936); Henderson v. Abbotts Alderney Dairies , 7 N.J. Misc. 454 (Sup. Ct. 1929); Swiencicki v. Wieczerzak , 6 N.J. Misc. 145 (Sup. Ct. 1928); and the recent case of Watkins v. Myers , 12 N.J. 71, 95 A. 2 d 705 (1953).

In six of these seven cases, the verdicts were set aside as inconsistent and irreconcilable. In five of the six cases cited, a married woman had filed suit to recover for personal injuries and the husband joined as plaintiff to recover expenses incurred by reason of his wife's injuries and for loss of the wife's services, and in each of the five cases the verdict was in favor of the wife but a no cause of action verdict as to the husband.

In the Doherty case, supra , the infant plaintiff was a passenger in an automobile driven by her father. There was a collision with another automobile at a street intersection in which both the father and daughter were injured. In a suit by the father and daughter to recover for injuries, etc., the jury returned a verdict in favor of the father, who was the driver of the automobile, and of no cause for action as against his infant daughter. The court set aside these verdicts on the ground that they were irreconcilable and demonstrated the unfitness of the jury to determine the rights and obligations of the respective parties.

In the Rich case, supra , the infant plaintiff was a passenger in an automobile and suffered serious injuries as the result of a collision at a street intersection between the car in which she was a passenger and another automobile. Suit was brought against the operator of both the car in which the infant plaintiff was a passenger and against the operator

of the other automobile involved in the collision. The infant's father joined in the suit to recover for medical and incidental expenses incurred on behalf of his daughter and the jury returned a verdict for $10,000 in favor of the infant and of no cause for action as to the father's claim. On defendant's rule to show cause it was urged that the verdicts were inconsistent and should be set aside. Justice Perskie, speaking for the Supreme Court, refused to do so and discharged the rule. In that particular case it appeared at the trial that the injured infant's father was a practicing physician; that the infant was treated by another physician, a Dr. Grecca; that by reason of professional courtesy extended by one physician to another, Dr. Grecca had testified that he would make no charge for his services unless the father recovered a verdict, in which event he would charge a fee of $200. The trial judge (the late Judge Lawrence) left it to the jury to decide as to whether or not there should be a verdict for the father's expenses. It appeared that any other expenses incurred by the ...


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