On appeal from the Superior Court, Appellate Division.
For affirmance as to Brown -- Justices Oliphant, Wachenfeld, Burling and Jacobs. For reversal as to Cyphers -- Justice Heher. The opinion of the court was delivered by Oliphant, J.
This is an appeal from a judgment of the Appellate Division which affirms a judgment in favor of the plaintiffs-respondents and against the defendants-appellants in an action for personal injuries sustained in an automobile accident. A motion for a new trial on the ground that the verdict was against the weight of the evidence and the result of mistake or passion was denied by the trial court. The Appellate Division held that under the evidence there was a question for the jury on the question of negligence and further held that the action of the trial court on the motion for a new trial will not be disturbed "unless it clearly and unequivocally appears there was a manifest denial of justice under the law." Hartpence v. Grouleff, 15 N.J. 545, 549 (1954). Certification was granted on application under R.R. 1:10-2 (d, e).
The plaintiff-respondent Ruby Honey, accompanied by her two infant children, was driving on Route 69 in rain and fog
on the night of December 21, 1953. At about 11:15 P.M. she was traveling south of Oxford, where the highway levels off after an upgrade of about a thousand feet. At that point in the road there is a two-lane concrete highway; to the right is a 15-foot-wide hard dirt shoulder, and beyond that an embankment. The defendant Brown's tractor-trailer was parked on the dirt shoulder, its right wheels against the embankment, its left wheels about six or seven feet off the concrete and directly across the highway from a service station and diner.
The plaintiff-respondent Ruby Honey testified that when she reached this point on the highway the fog was so thick she slowed down. She could not see the white line in the middle of the road and she decided to pull her car on the dirt shoulder and park until the fog lifted. As she did so the right front side of her car struck the left hand corner of defendant Brown's tractor-trailer. She testified her headlights were lit, that she did not see the defendant's truck until she "saw an object a split second before the accident actually happened" and "it looked like I was going into a wall or something." Then the following two questions were asked her by counsel for the defendants:
"Q. Did you see any lights on any -- on this thing that looked like a wall?
Q. Did you see -- do you recall the last question?
A. Did I see the lights? No sir."
The defendant Brown testified that he had parked on the shoulder of the road to check the conditions of the pavement. After checking the road he checked his rear tires and noticed his rear lights were illuminated, then he got into the cab of the truck and was about to proceed when he noticed the headlights of a car about 125 feet to his rear, then came the crash. Four other witnesses testified that upon their arrival within 15 minutes or more after the accident the truck's rear lights ...