On appeal from the Superior Court, Appellate Division.
For affirmance -- Chief Justice Vanderbilt, and Justices Heher, Oliphant, Wachenfeld, Burling, Jacobs and Brennan. For reversal -- None. The opinion of the court was delivered by Wachenfeld, J.
The appellant was seriously injured and his automobile which he was driving suffered extensive damage when it collided on Route 25 in Woodbridge with the rear of a trailer owned by Trans Oil Company which was attached to a tractor owned by Charles Szabo and driven by Joseph Szabo on the business of Trans Oil Company.
In the action the appellant brought to recover for his injuries and damage, the defendant Trans Oil Company counterclaimed, asserting his negligence was the proximate cause of the accident.
The jury returned a verdict of no cause of action on both the complaint and counterclaim, and the appellant appealed to the Appellate Division, where the judgment was affirmed. Miller v. Trans Oil Co., 33 N.J. Super. 53 (1954).
The appellant's petition for certification was granted upon his application. Miller v. Trans Oil Co., 17 N.J. 395 (1955).
The issue before us is limited to the query whether or not error was committed below in admitting the testimony of a witness that at about three-quarters of a mile before the scene of the accident a black sedan going at a fast rate of speed passed him and cut him off.
A resume of the pertinent testimony indicates that on the day in question, September 19, 1951, at about 9:30 P.M., the appellant was driving his car in Woodbridge, New Jersey, going in the direction of Newark on Route 25. He was traveling in the slow lane near the right edge of the highway at a speed of between 40 and 45 miles an hour.
Route 25 in this vicinity is a dual highway going north and south, with a safety isle in the center. There are two lanes for northbound and two lanes for southbound traffic. The paved portion of the roadway for northbound traffic from the right edge of the road to the edge of the safety isle is about 24 feet wide, the isle being about ten feet wide.
The appellant testified he came upon the tractor-trailer, which was traveling 30 to 35 miles an hour, and deciding to pass it, he blinked his lights, blew his horn, increased his speed to about 50 or 55 miles an hour, and pulled to the left side of the road. Suddenly, without warning, the tractor swerved to the left into the fast lane and gave no signal or warning of any kind of its intention to do so. The left front of the appellant's car struck the right rear of the trailer.
The appellant called as one of his witnesses one Richard Hollyer, who had also been subpoenaed by the defendants. He testified that when he came upon the scene of the accident, the appellant was still in his car. The tractor was in the island facing west, and the trailer was facing northwest. The right rear of the trailer was at about the center of the highway.
On cross-examination, the witness was asked: "Did a black sedan, going at a terrific rate of speed, pass you just before you reached the scene of this accident?" There was an objection entered because the question did not constitute
"proper cross examination." The court agreed with the suggestion made and the witness was subsequently recalled on behalf of the defendant. A like question was then submitted to him: "Mr. Hollyer, did the black sedan automobile pass you, going in your direction, within three-quarters of a mile of the scene of this accident?" The question was objected to "unless it can be definitely stated that the sedan in question was the sedan of Calvin Miller," and secondly, ...