On appeal from the Superior Court, Appellate Division.
For affirmance -- Chief Justice Vanderbilt, and Justices Wachenfeld, Burling and Jacobs. For reversal -- Justice Oliphant. The opinion of the court was delivered by Wachenfeld, J.
The Appellate Division reversed the judgment of the trial court entered in favor of defendant on a jury verdict of no cause of action in an automobile accident case. The cause was remanded for a new trial, but we granted certification on the defendant's petition. Ford v. Reichert, 22 N.J. 269 (1956).
On February 9, 1954 plaintiff was a passenger in the defendant's automobile en route to their place of employment. The car skidded on an icy pavement and slewed off the roadway, hitting a stop sign and tree. The plaintiff was seriously injured.
Upon trial the plaintiff contended he was riding with defendant as an invitee by reason of a car pool agreement in effect for nearly two years prior to the accident. The defendant maintained, however, this arrangement had terminated some time earlier and that the plaintiff was a mere licensee since he had requested a ride on the morning the accident occurred, his car being unavailable.
Driving conditions were admittedly dangerous and defendant's negligence was said to consist in accelerating to pass another car on a bend in the road, which caused his automobile to skid. The defendant's explanation was that he merely encountered an icy patch which he was unable to observe and that he used every accepted measure in attempting to regain control of the car. He also interposed the affirmative defense of assumption of the risk.
The defendant testified on direct examination that at 7:30 A.M. he had received a telephone call from plaintiff requesting transportation. In order to provoke an amplification of this testimony, defendant was then shown a statement he had previously made to an investigator containing some additional information.
Objection was made to the use of the statement for the purpose of refreshing the recollection of the defendant as to the events preceding the ride. The objection was overruled, and this was cited as prejudicial error in the appeal to the Appellate Division. The memorandum in question is supposed
to bear on the issue of whether the plaintiff was an invitee or licensee.
The Appellate Division found no error, holding permission to use the statement to stimulate the defendant's memory with regard to forgotten portions of the plaintiff's telephone conversation was appropriately granted within the trial judge's discretion. Its employment was under the rule concerning "present recollection refreshed." The statement itself was not introduced into evidence nor were its contents submitted to the jury.
The disposition in this respect is no longer the subject of controversy as it is not before us on the pending appeal, both sides apparently being satisfied with the ruling made.
After having so determined, however, the Appellate Division on its own motion invoked R.R. 1:5-3(c), our rule on plain error applied to the lower appellate tribunal by R.R. 2:5, and reversed the judgment rendered because there was error, even though not called to the court's attention, in the trial judge's (1) charge on contributory negligence because it was not an issue raised by the pleadings or pretrial order; (2) charge on two different occasions as to the ...