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State v. Cestone

Decided: November 21, 1955.

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
RALPH R. CESTONE, DEFENDANT-APPELLANT



Clapp, Jayne and Francis. The opinion of the court was delivered by Jayne, J.A.D.

Jayne

The present defendant feels sufficiently aggrieved to prosecute an appeal from a judgment of the Hunterdon County Court rendered on February 19, 1955 imposing upon him a fine of $10. To him the judgment is vexatious because it constitutes an adjudication that he offended the law. He employs his undeniable right to have the propriety of the proceedings at his trial and his specified criticisms thereof subjected to our appellate consideration.

It will be both explanatory and expedient first to segregate from the evidence the undisputed and acknowledged facts.

At about 9:05 P.M. on February 14, 1954 the defendant was driving his automobile on a two-lane highway toward Flemington. His vehicle was traveling behind two others which were proceeding in the same direction. Unhappily the car immediately in front of him was occupied by two members of the State Police. The defendant turned his vehicle into the lane at his left and undertook to pass both of the cars in front of him. He successfully accomplished his undertaking but only by returning to the right lane in avoidance of an oncoming vehicle approaching from the opposite direction.

The troopers who witnessed his performance disapproved it and presently detained him. To moderate their reproach the defendant acknowledged to them that "it was a bad pass." Notwithstanding his conciliatory attitude, he was given a so-called ticket obliging him to answer a charge of violating R.S. 39:4-86. On March 9, 1954 the Municipal Court of the Township of Readington found him guilty of offending the provisions of the designated section of the statute and imposed upon him a fine of $10 and costs of $3.

The defendant appealed from this conviction to the Hunterdon County Court where after a trial de novo he was on February 19, 1955 again determined to have committed the alleged violation, and a fine of the same amount was imposed upon him.

The section of the statute which the defendant was accused of violating contains the two following paragraphs of relevancy:

"The driver of a vehicle shall not drive to the left side of the center line of a highway in overtaking and passing another vehicle proceeding in the same direction unless the left side is clearly visible and free of oncoming traffic for a sufficient distance ahead to permit the overtaking and passing to be made in safety.

The driver of a vehicle shall not drive to the left of the center of a highway in order to overtake and pass another vehicle proceeding in the same direction upon the crest of a grade or upon a curve in the highway where the driver's view along the highway is obstructed within a distance of five hundred feet."

Preliminarily we may state that while there was a slight curve in the highway at the locality, it was not made evident that the defendant's view along the highway was obstructed within a distance of 500 feet. Therefore in the consideration of the defendant's alleged violation of the specified section of the statute, the distances between the respective vehicles assumed essential materiality in determining whether the lane to the left of the defendant in the direction in which he was proceeding was "free of oncoming traffic for a sufficient distance ahead to permit the overtaking and passing to be made in safety."

Neither the driver of the vehicle in front of the patrol car nor the driver of the oncoming vehicle was identified. The evidence for the prosecution was confined to the revelations of the two troopers, the competency and value of which have captured our particular attention.

Common observations would incline one to suppose that highway patrolmen with current frequency witness occurrences in which imprudent motorists pass or attempt to pass, not always without disaster, a vehicle or vehicles ahead of them in the face of another vehicle closely approaching from the opposite direction. Where there is no resultant collision between the vehicles or other injurious mishap, we are informed that it ...


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