For affirmance and modification -- Chief Justice Weintraub, and Justices Burling, Jacobs, Francis and Proctor. For reversal -- Justice Heher. Dissenting in part -- Justice Wachenfeld. The opinion of the court was delivered by Francis, J. Heher, J. (dissenting in part). Wachenfeld, J. (dissenting in part).
Certification was granted to review the judgment in this motor vehicle negligence action.
The plaintiff, Nancy Botta, was a passenger in an automobile driven by the defendant, Herman G. Brunner, when it collided with a car operated by co-defendant Leo Frieband. She sued both drivers to recover damages for injuries and monetary losses suffered. Rose De Santis, another rider in the Brunner vehicle, brought an independent suit against the two operators, claiming injuries and other damages. By consent, the actions were tried together. After eight days of trial and more than seven hours of deliberation, the jury returned verdicts of $5,500 in favor of Mrs. Botta and $300 in favor of Mrs. De Santis against the defendant Brunner. In each case Frieband was exonerated. The jury was then polled specifically on the separate claim of each plaintiff against each defendant and the verdicts were affirmed unanimously. Thereafter, both plaintiffs sought a new trial, alleging inadequacy of the awards and various errors of the court. Upon denial of the motions, the plaintiff Botta
appealed, attacking the legal propriety of the order against her, as well as the entire judgment. The Appellate Division concluded that error had been committed in the charge to the jury as to the nature of the burden imposed on the plaintiff with respect to proof of her injuries, and ordered a new trial against the defendant Brunner but limited it to the sole issue of damages. The judgment in favor of Frieband was sustained on the ground that on the evidence presented, the jury had been justified in resolving the question of negligence in his favor. Botta v. Brunner, 42 N.J. Super. 95 (App. Div. 1956).
After granting certification to study the entire matter, we requested supplemental briefs in order to deal more fully with a problem which is currently vexing the trial courts, i.e., the right of plaintiff's counsel in personal injury damage suits to suggest monetary mathematical formulas to a jury for the computation of compensation for pain and suffering.
At the outset it seems advisable to deal with the question of whether the Appellate Division erred in not ordering a new trial on all issues as to both Brunner and Frieband.
On this aspect of the case, our own examination of the record convinces us: (a) that there was adequate evidence of the negligence of both drivers; (b) that the jury could reasonably have found one or the other or both responsible for the mishap, and (c) that they made a clear and unmistakable finding that Brunner alone was at fault.
More particularly, our review of the evidence indicates that the jury could have found the following facts. Frieband, driving a 1941 Plymouth, was proceeding in second gear up a steep grade in a southerly direction on Matthew Court in Roxbury Township, New Jersey. It was drizzling at the time. When he was very close to the intersection of Laurie Road he came "practically to a stop," and looked to the left and right. At that place the view to the left was somewhat obstructed by foliage. At one point in his testimony Frieband said that he could see "possibly a hundred feet"; at another, "thirty feet." Nothing was coming. Laurie Road, in the vicinity of this intersection, consists of "a very
steep grade" so that a westbound car approaching Matthew Court would be moving downhill.
On satisfying himself that no car was in sight, Frieband remained in second gear and started to drive across Laurie Road at "possibly five or eight miles" per hour. When he was about eight or ten feet into the intersection, he saw the Brunner car "possibly 40 or 50 feet up on Laurie Road" coming west down grade at 30 to 40 miles per hour. He turned to the left, applied his brakes and stopped as the impact took place; the side of his left front fender came in contact with the right front of the other car. This put "a good dent" in his fender. After the impact, Brunner continued on and came to a stop 100 or 150 feet beyond the intersection on the wrong side of the road.
Brunner was familiar with the intersection, the obscured view and the fact that his course of travel to Matthew Court would be down grade. He admitted knowing that the "intersection was what might be termed a blind intersection" and that he had to be "extremely careful" because of the hedges at the corner. Yet he proceeded across Matthew Court without stopping, and never saw the Frieband car until the moment of impact. He conceded that Frieband's vehicle stopped at the point of collision while he continued for about 100 feet beyond the intersection and came to rest on the left hand side of the road. Mrs. Botta thought Brunner "was going fast" and she testified that he did not slow down as he approached the corner. Neither Brunner nor Mrs. De Santis made any estimate as to Frieband's speed. The only witness who said that he was moving fast was Mrs. Botta.
No effort has been made to outline the variations in the details of the testimony as they developed on direct and cross examination. And we have not undertaken to suggest from the proof all of the hypotheses on which the jury might have found both drivers guilty of negligence. The purpose of our appellate review is satisfied if the evidence discloses a reasonable basis upon which a jury of ordinary and fair-minded citizens could find, as it did, that
Brunner was the sole proximate cause of the mishap. Hager v. Weber, 7 N.J. 201, 210 (1951). As we have said, such a basis does emerge from the record and accordingly their judgment must be respected. Moreover, not only is their selection of the culpable party rationally supportable, but in our view it also was so clearly and definitively formulated as to make inescapable the conclusion that mistake or misapprehension of any kind was not involved and that it was not in any way affected by the error in the charge on the subject of damages. Accordingly, we are satisfied that the issue of liability was settled fairly and upon sufficient evidence, and so ought to stand. Rempfer v. Deerfield Packing Corp., 4 N.J. 135, 149 (1950); Robinson v. Payne, 99 N.J.L. 135, 142 (E. & A. 1923).
Thus we are brought to a consideration of the portion of the trial court's charge which the Appellate Division held to be prejudicially erroneous.
There was a sharp dispute at the trial as to the extent of Mrs. Botta's injuries and the pecuniary losses which flowed from them. The probability that she, as a passenger, would receive a verdict against one or both of the defendants undoubtedly was evident to all parties. That realization presumably accounts in some measure for the fact that the major portion of the proof was concerned with the injury claim. And the emphasis on that facet of the case must have served to alert the jury's particular attention to it and to the court's explanation of the controlling law with respect to it.
After a full discussion of the liability aspects of the case, the court said:
"If you come to the question that either or both of these defendants are liable either to Mrs. De Santis or to Mrs. Botta or to both, then you take up the question of damages; and so now in the second part of my charge I will deal with damages."
Then followed an elaborate treatment of the allegations of injury and the principles to be applied in considering them. Toward the close of the explanation, he said:
"I think I have already charged you with regard to the responsibility of Mrs. Botta to prove by clear, convincing evidence that her injuries were the result of this accident, and that she is only to recover for those injuries which were probably the result of this accident. * * *." (Emphasis added.)
No earlier portion of the charge contained any reference to a duty to establish the injuries by clear and convincing evidence. As the Appellate Division noted, it may be that the court had in mind his previous statement that:
"The plaintiffs have the burden of proving what injuries were the natural and proximate result of the defendants' negligence, and the law casts the burden on them. The evidence must establish with reasonable certainty that the injuries and losses for which you award any damages are properly attributable to the accident. * * *." (Emphasis added.)
However, it cannot be said definitely that he intended to equate "clear and convincing" proof with proof to a "reasonable certainty." (Note that "reasonable certainty" has been declared to be an improper expression. Budden v. Goldstein, 43 N.J. Super. 340, 347 (App. Div. 1957); cf. Flexmir, Inc., v. Lindeman & Company, 4 N.J. 509, 514 (1950)).
In any event, it is elementary that the burden cast on the plaintiff to prove that her injuries resulted from the accident is not that she must do so by clear and convincing evidence, but only by a preponderance of the evidence or the greater weight of the evidence. 38 Am. Jur., Negligence, § 285. We agree with the Appellate Division that to describe the plaintiff's task in terms of necessity for clear and convincing evidence is to require a higher quality of proof than the law demands. Cf. Davidson v. Fornicola, 38 N.J. Super. 365 (App. Div. 1955). And in a trial where the controversy over injuries loomed so large, the imposition of that heavier burden must be condemned as erroneous. To illustrate the atmosphere in which the rule was announced, it is only necessary to refer to the court's assertion made just a few minutes earlier in the course of his charge:
"In this case there is a very serious dispute as to Mrs. Botta's injuries resulting from the accident, the defendants contending very seriously that her present condition is not a result of this accident; that it is remote, unrelated to the accident."
It is said occasionally that the phrases, "preponderance or greater weight of the evidence," "clear and convincing evidence" and "beyond a reasonable doubt," which are given to juries as the tests to be applied to the proof in determining whether a particular finding or verdict is warranted, are illusory; that to the layman they represent distinctions and not differences. We cannot agree. These traditional devices, which provide the scales on which the persuasive impact of the sum total of the evidence must be weighed, have a long history of distinctive connotations. That evidence of greater weight, i.e., of more probative force, of higher quality, is required to satisfy one test as distinguished from the other, is not difficult either to understand or to explain or to illustrate to a jury. To concede otherwise is to admit that words are no longer our servants. Until the time arrives when experience or experiment demonstrates that such long recognized distinctions have no practical utility, we must adhere to them. Cf. Larson v. Jo-Ann Cab Corp., 209 F.2d 929 (2 Cir. 1954).
In prosecuting the appeal, plaintiff urged that the trial court also erred in refusing to permit counsel to suggest to the jury in summation a mathematical formula for the admeasurement of damages for pain and suffering. The Appellate Division agreed with plaintiff's viewpoint. The problem is of sufficient current urgency to demand our attention.
In his closing argument to the jury, after speaking of actual monetary losses, plaintiff's counsel said:
"You must add to that, next, the pain and suffering and the disability that she has undergone from August 2nd, 1953 to now. Take that first. That is 125 weeks of pain and suffering. Now, that is difficult to admeasure, I suppose. How much can you give for pain and suffering? As a guide, I try to think of myself. What would be a minimum that a person is entitled ...