Goldmann, Freund and Conford. The opinion of the court was delivered by Goldmann, S.j.a.d.
Defendants Public Service Coordinated Transport and John W. Renart appeal from an order entered in the Law Division granting a new trial as to all issues in an automobile-bus collision action which resulted in a verdict of no cause of action in favor of defendants Public Service and Renart, of $1,000 in favor of Frank T. Dahle, individually, against defendant Goodheer, and of $3,000 in favor of Francis T. Dahle, an infant suing by his guardian ad litem , against defendant Goodheer.
At about 7 P.M. on June 13, 1953 infant plaintiff was a passenger in an automobile owned and operated by defendant Goodheer, travelling generally west from the Lincoln Tunnel toward the New Jersey Turnpike. Defendant Renart was driving a Public Service bus in the same direction. The highway consisted of two lanes on each side of a safety island consisting of grass and curbing. The accident occurred at a point near an opening in the island about half a mile from the Turnpike toll booths, when the left front of the bus struck the left rear side of the Goodheer car. It was still
daylight but slightly foggy, the highway was wet and it was drizzling. The infant plaintiff suffered a broken left forearm and a dislocation and fracture of his left elbow. He sues by his father as guardian ad litem , and the father seeks damages per quod.
The complaint contains general allegations of negligence on the part of Goodheer, Public Service and Renart, and in it each of the plaintiffs sought damages against each of the defendants individually, jointly, or in the alternative. Defendants Public Service and Renart filed answers admitting ownership and operation of the bus and setting up the separate defenses of contributory negligence, sole negligence and common enterprise. Goodheer's answer admitted ownership and operation of the car, denied negligence, and set up the defenses of unavoidable accident and negligence of the co-defendant Renart.
In the pretrial order plaintiffs contended that the Goodheer car, while making a left turn from the inside (fast) lane through an opening in the safety island, was struck in the rear by the Public Service bus operated by Renart, and that the accident was caused by the negligence of Goodheer and Public Service acting by its agent or servant, or one of them. The contention of defendants Public Service and Renart was that the Goodheer car turned to its left directly in front of the bus at a point where such turn was prohibited, that just before this Goodheer had been driving his car in the right or slow lane, that the accident was the result of Goodheer's negligence, and that plaintiff infant was guilty of contributory negligence and, further, was on a joint enterprise with Goodheer. Goodheer's contention was that he had his vehicle in the gap in the center island preparatory to entering the east-bound lane of traffic, and that he had come to a complete stop when the bus travelling in the fast lane hit the left rear of his car; and he further alleged the accident was unavoidable.
As is usually the case in matters such as this, the evidence was in direct conflict. The proof presented on behalf of plaintiffs was that the Goodheer car had been travelling in
the fast lane from the time it left the Lincoln Tunnel until the accident happened. Goodheer was driving; his son was sitting beside him, and plaintiff infant was in the rear seat with Marjorie Goodheer, with whom he was keeping company and whom he married before the trial, on his left and Mrs. Goodheer on his right. Those in the Goodheer car had planned to return to Morristown via Route S-3, but had missed the S-3 turn-off, which was on the right-hand side of the road, because they were travelling in the fast lane. They were looking for a sign which would indicate some route by which they could return to S-3. Defendant Goodheer noticed a sign when 50 to 100 feet from the opening in the center island; he slowed his car from 40 miles an hour to 5, noticed that the sign read "Do Not Enter," shifted into second gear in order to proceed, and was hit in the rear by the bus. His testimony and that of infant plaintiff and his wife Marjorie was that the Goodheer car was facing straight down the highway and had not turned into the opening when the collision occurred. Plaintiff testified that just as the car was slowing down he raised his left arm to put it in back of Marjorie and casually looked to the rear but observed nothing for about 25 feet down the road. He heard nothing before the accident except Marjorie's cry, "Here comes a bus!" Marjorie, in turn, testified that when the car slowed down she turned around to look over her left shoulder -- she doesn't know why she turned -- and through the rear window of the car saw the bus some 60 feet in back.
Those called by plaintiff were Goodheer, Renart, the infant plaintiff, his wife Marjorie Goodheer Dahle, and one Walter Sicko, Jr. The latter was travelling east toward the Lincoln Tunnel and his testimony was that when he was about 300 to 400 feet from the opening in the island he saw the Goodheer car either opposite the opening or about in it. It appeared that Goodheer was going to turn and Sicko prepared to slow down if he did. The Goodheer car had either stopped or was going very slowly. Sicko started to go ahead again when he saw the bus and a taxi to its right; an accident seemed unavoidable and he put on his brakes. The bus tried
to swerve to the right of the Goodheer car but hit it on the side and swung it around; the car hit the westerly curb of the opening and bounced into Sicko's lane some 30 feet away from his car.
At the conclusion of plaintiffs' case defendant Goodheer rested without producing any witness.
The account of the accident presented on behalf of defendants Public Service and Renart was that the bus was proceeding at about 35 miles an hour in the fast lane when the Goodheer car, travelling in the slow lane to the right, suddenly cut in front of the bus some 30 feet in front and tried to pass through the opening in the island. Renart testified that the car faced with its left side toward the bus when he braked and swerved to the right to avoid a collision. He was unsuccessful and the result was that the bus hit the car, sending it through the opening. Just before the accident he heard some one in the bus scream. The testimony of several passengers tended to support this account, although somewhat tenuously.
Pictures of the automobile and bus introduced in evidence show that the car was hit directly on its left rear side, demolishing the fender and springing the doors; the bus carries the ...