Goldmann, Freund and Conford. The opinion of the court was delivered by Freund, J.A.D.
[50 NJSuper Page 331] This is a negligence action brought by the plaintiffs, Paul and Isabel Ambrose, husband and wife, who were invited guests in an automobile owned and operated by the defendant, LeRoy Cyphers, which was involved in a collision with the automobile of the defendant Donnelly.
Plaintiffs recovered judgments on a jury verdict against both defendants totaling $106,000. Defendant Cyphers has appealed.
The factual circumstances are briefly as follows. The plaintiffs and defendant Cyphers and his wife returned to East Orange after spending the evening attending the theater in New York. They stopped at the Suburban Diner where Cyphers parked his car at the northerly curb of Central Avenue, facing west, about 250 feet west of the intersection of Central Avenue and Harrison Street. After leaving the diner at about 1 A.M., the party returned to Cyphers' car, Mrs. Ambrose occupying the rear seat in about the left center and her husband sitting at her right side. Cyphers sat in the driver's seat with his wife in the right front seat. They were only a few minutes from the Ambrose home and Cyphers had agreed to take the plaintiffs there. The collision occurred while Cyphers was attempting to make a left-hand U-turn on Central Avenue, a street 60 feet wide, divided down the center by a solid white line, with broken white lines running parallel with, and about ten feet distant from both sides of the center line.
Plaintiff Isabel Ambrose testified that just before the collision she was sitting half facing her husband, engaged in conversation with him. As Cyphers started to draw away from the curb she glanced over her right shoulder back toward Harrison Street and saw in the intersection the headlights of an approaching car. She gave as a reason for glancing back that "It was because I was half turned this way. It was an involuntary thing because I saw headlights." When asked if she did or said anything at that instant, she said, "No, I didn't," but resumed the conversation with her husband. She recalled that in a few seconds their car was brightened by the lights of the oncoming vehicle.
Mrs. Steel, sister-in-law of Mrs. Ambrose, testified that at the hospital shortly after the accident she discussed with Cyphers how the accident occurred and, in describing the lights of the oncoming car, Cyphers said to her, "Until my dying day I will never forget the headlights in my mirror,"
and further he said that while pulling away from the surb, "all he saw was the glaring of the headlights." She further testified that Cyphers said to her that "he [Cyphers] blames himself and had he been more careful the accident would not have happened."
Cornelius J. Landry, who sells papers, testified that he was standing in front of the diner, and as the Cyphers car was pulling away from the curb, he heard the Donnelly "car coming up Central Avenue with a roar." His attention was attracted by "the roar of the motor from the speed." While Cyphers was in the process of making the U-turn, Landry saw the Donnelly car approaching over a slight grade just beyond Harrison Street and saw it go through the red traffic light at that intersection. He said that there were cars parked in front of the Cyphers vehicle on the same side of the street. Landry's testimony as to speed, noise and Donnelly's car going through the red traffic light was corroborated by Peter Rosin, a passing motorist.
Cyphers testified that after he got into his car he lowered his window and looked west and saw no moving vehicles. He said that he looked to the east and could see 50 to 100 feet beyond the intersection of Central Avenue and Harrison Street. He did not see the headlights of any vehicle moving west on Central Avenue at that time, so he proceeded to pull away from the curb, intending to make the U-turn. He made a further observation to the west and saw no vehicle approaching, then he looked to the east or left and saw "this [the Donnelly] car practically on top of me" and in a "split second" after he first saw the Donnelly car, the collision occurred. At the time of the impact, he said, the left front wheel of his car had reached the white center line of Central Avenue. The witnesses agreed that Cyphers was traveling no more than five miles an hour and that Donnelly's car was going at a terrific speed. His testimony was not too definite as to the precise point when he first saw Donnelly's car.
A police officer testified that he had given chase to the Donnelly vehicle after it had passed a red traffic light about
a mile and a half east on Central Avenue. Donnelly's car was traveling at speeds from 60 to 65 miles an hour and passed through another red light during the chase. Three blocks before Harrison Street, the police officer slowed down, having lost sight of the Donnelly vehicle, so that he was not an eye witness to the accident.
Cyphers denied telling Mrs. Steel that he was to blame for the accident and further denied having said he would never forget the approaching headlights of Donnelly's car, but admitted talking to her of the accident soon after it happened. On cross-examination he testified that he was unable to recall what he may have said to her. When asked if he had placed any reliance on the traffic light at Harrison Street before attempting to make the left U-turn, he said no, that he did not notice the traffic light.
Defendant Donnelly filed no answer to the complaint nor did he file an answer to Cyphers' cross claim. He was not called to testify. The defendant Cyphers had taken a default judgment against Donnelly, but the judge ruled that the assessment of damages against Donnelly would take place on another day, thus severing the respective claims.
The initial argument relates to the judge's charge when the jury were instructed as follows:
"If you find from the evidence that the automobile of the defendant Cyphers standing in a parked position at the north curb of Central Avenue facing west was started by Cyphers with the intention of proceeding to make a left-hand U turn across Central Avenue so as to proceed east, then I charge you that it was the duty of the defendant Cyphers to exercise great care and to seek an opportune time to make such a left turn or U turn."
Previously in the charge the court had instructed the jury that the defendant was under a duty to exercise "reasonable care," to exercise such care as "a reasonably prudent person would exercise under all the circumstances presented * * *."
After the jury had retired, it sent a note to the judge ...