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State v. Feldman

Decided: May 25, 1954.

STATE OF NEW JERSEY, PLAINTIFF,
v.
MAXWELL W. FELDMAN, DEFENDANT



On motion for new trial.

Conlon, J.c.c.

Conlon

[30 NJSuper Page 601] The defendant was found guilty by a jury of an indictment charging that on June 26, 1952 he did cause the deaths of Lea Mandelman and Jerome Mandelman by driving a motor vehicle carelessly and heedlessly in wanton disregard of the rights and safety of others in violation of the provisions of N.J.S. 2 A:113-9. The defendant moves for a new trial upon three grounds:

(1) That the verdict was contrary to the weight of the evidence;

(2) That the court erroneously charged on the law of contributory negligence; and

(3) That the jury was misinformed as to the law regarding the speed limits controlling the situation presented.

The first two grounds may be dismissed without discussion. As to the first, the court stated on the record its reason for determining that a jury question was presented and sees no reason for reconsideration of its conclusion. As to the charge on contributory negligence, no objection was made to the court's charge and since it is conceived to be substantially in accord with the accepted rules of law, no palpable error is presented in that respect such as would warrant the setting aside of the verdict rather than have the question passed upon on appeal.

The third point presents a more difficult problem and raises some questions as to the relative obligations of the court and counsel for the State and defendant and also the question as to what extent the trial court should go in setting aside a verdict which was reached on the issues presented to it without objection.

The accident in question occurred in Branch Brook Park in Essex County. Without reviewing the facts, it is sufficient to indicate that from the evidence the jury was justified in concluding that in travelling over a winding two-lane road the defendant was going so fast that his Lincoln car crossed the white line and collided with a Plymouth car with such force as to drive the latter back some 21 feet. The two occupants of the Plymouth were killed. Admittedly, one of the primary issues of the trial was the speed at which the defendant was operating his car. There was evidence from which it might be inferred that he was going at last 45 to 50 miles an hour. The defendant denied excessive speed. In this situation the following occurred: John Swiderski, a member of the Essex County Park Police Department, without objection, testified as follows in answer to questions of the Prosecutor:

"Q. You are from the Park Police?

A. That's right.

Q. What is the speed ...


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