Goldmann, Freund and Conford. The opinion of the court was delivered by Conford, J.A.D.
[51 NJSuper Page 93] These appeals arise out of the joint trial of two actions in the Superior Court, Law Division. In the first suit Marvin W. Greenberg sues as administrator
ad pros. of the estate of his five-month-old deceased daughter, Amy, to recover damages for her wrongful death, while his wife, Debra Greenberg, sues on her own behalf for personal injuries, her husband joining per quod. The defendants in that action are James Stanley and Samuel Waldor, whose negligence in the operation of their respective automobiles is alleged to have resulted in Mrs. Greenberg and her child being struck on the sidewalk near the intersection of Elizabeth Avenue and Stengel Avenue in Newark on June 26, 1956, with the tragic consequences mentioned. In the second action Stanley sues Waldor for personal injuries and property damage.
The accident occurred when the two cars, Stanley's proceeding southerly on Elizabeth Avenue, and Waldor's making a left or southerly turn out of a Weequahic Park road exit slightly north of the intersection of Stengel and Elizabeth Avenues, either brushed against or approached very close to each other and Stanley's vehicle then veered to the right, mounted the southwest curb of the said intersection, and struck a public utility pole, and also Mrs. Greenberg and the child, who was being pushed by her mother in a carriage at the time.
The jury returned verdicts in favor of the Greenbergs and against Waldor, but not against Stanley, being $10,000 in favor of the administrator ad pros. , $27,500 for Mrs. Greenberg, and $1,000 for Mr. Greenberg per quod , and in favor of Stanley in his action against Waldor for $10,000. On a poll, two of the jurors dissented from the exculpation of Stanley from liability to the Greenbergs, and two other jurors from the verdict for Stanley against Waldor. Motions to set aside the verdicts on grounds related both to liability and damages were denied except as to the amounts of the verdicts for the administrator ad pros. and for Stanley, which were required to be reduced to $5,000 and $7,500, respectively, as conditions for denial of new trial as to damages. Consents were filed and judgments accordingly entered. Waldor and the administrator ad pros. appeal, the latter only with respect to the reduction of his verdict. Waldor
raises a number of points on appeal, and our disposition of one of them will require a reversal and a new trial as to the Stanley judgment against Waldor. We therefore consider it first.
At the trial the attorney for Stanley during his cross-examination of Waldor asked the latter whether he had heard some unidentified people or person at the scene of the accident shortly after its occurrence say that "a green car had cut off the Stanley car" (Waldor's car was green) after a number of rulings by the court sustaining objections by Waldor's counsel to repeated efforts by the attorney to elicit that very information, purportedly for the purpose of establishing an admission based upon Waldor's silence in the face of such statements. A motion for a mistrial on Waldor's behalf was denied. To understand the merits of the contention as to the prejudice assertedly visited by this episode upon Waldor's defense to both actions requires a fairly detailed exposition of the evidence bearing upon the manner in which both Waldor and Stanley were operating their vehicles immediately prior to the accident.
Stanley's main theory of Waldor's negligence was that the latter came out of the park at a fast rate of speed without stopping and in disregard of Elizabeth Avenue traffic and made such a wide sweeping left turn as had the effect of either blocking or threatening to block Stanley's forward progress unexpectedly and leaving him so little room on the street to avoid the Waldor car as to force him up on the sidewalk. There was also some disputed evidence that the cars brushed physically. Waldor's defense proceeds upon the thesis that he stopped before entering Elizabeth Avenue, looked in both directions, saw on the right only the Stanley car and another stopped at a red traffic light at Lehigh Avenue, a short block away, proceeded slowly to make a left, southbound turn into Elizabeth Avenue, straightening out with enough space for a car to pass him on the right, and that Stanley, coming forward speedily and without making
any observation on his left for traffic leaving the park, drew close alongside his car and then swerved onto the sidewalk. We may observe, preliminarily, that our close survey of the entire appendix satisfies us that there was evidence to support either theory but that the much more likely hypothesis was that the accident occurred as a result of the concurring negligence of both drivers. The choice of alternatives in the first instance was for the jury. The question before us is whether the evidential scales were prejudicially weighted against Waldor by the injection of the evidence referred to above to such an extent that denial to him of a new trial would be inconsistent with substantial justice. R.R. 1:5-3(b).
We proceed to the testimonial background against which the question must be decided.
A Mrs. Zucker was walking with Mrs. Greenberg, both pushing their baby carriages in a southerly direction, just before the accident, the latter being nearer the street. Mrs. Greenberg was struck in the back and did not see the cars. The Waldor car first caught Mrs. Zucker's eye as it came into Elizabeth Avenue. That street is described as a wide main thoroughfare, with room for three cars abreast on each side of the center line. Stengel Avenue enters Elizabeth Avenue from the west just south of the park road exit into Elizabeth Avenue. The southerly line of the park exit, if projected at right angles across Elizabeth Avenue, just about touches the intersection of the westerly line of that street with Stengel Avenue, and that point is about 37 feet north of the southwest corner of that intersection. Mrs. Zucker said the Waldor car made a "wide sweeping turn" left, its wheels screeching. It came nearer the curb than the center of the street, leaving just enough room for another car between it and the curb. She had only a momentary glimpse of the Stanley car before it struck the pole, "going very fast."
Harry Handelman was seated parked in a car on the east side of Elizabeth Avenue about 30 feet south of the park exit, facing north. He saw the Stanley car and another car
stopped for a red traffic light, the Stanley car nearer the curb, at Lehigh Avenue, a "short block" north of Stengel Avenue. As the light changed, Stanley's car started "a little fast," getting a car length lead before the car alongside started. There were no cars parked on Elizabeth Avenue between Lehigh and Stengel Avenues. Stanley was going "fast" toward Stengel Avenue. Handelman also saw the Waldor car, but he was not asked which car he saw first. The Waldor car came into Elizabeth Avenue "fast" (he later said 20 miles per hour) and made a left turn, leaving sufficient space for a car to pass on the right. The turn was not a "wide turn." In making it, his speed was "medium" and his tires made no noise. The turn was completed before Stanley jumped the curb. The Stanley car was almost halfway across Stengel Avenue when the Waldor car made its turn left on Elizabeth Avenue, Stanley having reached Stengel Avenue just as Waldor came into Elizabeth Avenue. The Waldor turn was gradual. The witness heard no contact between the cars. The Stanley car had been traveling four or five feet from the curb and "fairly fast." When it reached Stengel Avenue, it swung to the right "all at once" and jumped the curb, going "fairly fast." Stanley did not apply his brakes or slow up when he veered.
On cross-examination of this witness, the attorney for Stanley, purportedly only to contradict his estimate of Waldor's speed coming out of the park, confronted him with a written statement he had given Stanley's investigators. An objection on behalf of Waldor was overruled. He then read from the statement, "As this bright car [Stanley] approached Stengel Avenue a light green car just shot out of the park road exit onto Elizabeth Avenue, turned left going south and it appeared like it might have cut off the bright car going south." Upon being asked whether this was the truth, the witness said, "That's right." It will be noted that the italicized portion of the statement does not bear upon the question of Waldor's speed emerging from the park.
Mrs. Rose Wuhl, driving her car alongside Stanley, stopped with him for the light at Lehigh Avenue. Stanley pulled
forward ahead of her as the light changed, maintaining his position nearer the curb. She proceeded on the lane nearer the center. She saw the Waldor car coming out of the park "fast" and making a wide sweeping turn across her path but far enough ahead of her not to cause her to slow up. The Waldor car came very close to the Stanley car. The Stanley car swerved right and went up the curb, whereupon Mrs. Wuhl came to a full stop at Stengel Avenue. Mrs Saperstein, a passenger in the Wuhl car, testified the Waldor car made a "sharp left turn" into Elizabeth Avenue.
The defendant Stanley was called as a witness for the Greenbergs. He testified he was ahead of the Wuhl car leaving the Lehigh Avenue light. He said there were cars parked on the west side of Elizabeth Avenue between Lehigh and Stengel Avenues. He first saw the Waldor car as he was "parallel with" the park entrance and it was then coming out "very fast." His vision of the park entrance was always unobstructed. Waldor made a wide left turn. When asked how close the Waldor car came "to the left-hand side" of his car, he answered, "I don't think I could have sneezed between his fender and my right fender in the rear." On cross-examination by his own attorney, Stanley first said he had already entered Stengel Avenue when the Waldor car came out of the park, but upon having his recollection "refreshed" by his depositions, said he had only reached the intersection by then. He also said that Waldor made a "sharp left turn," but later described it as a "wide left turn." He temporized as to whether he applied his brakes, saying both that he did and that he could not remember. Asked whether Waldor "was coming straight across to Stengel Avenue or making a turn," he answered, "He was making a left turn." He said he then "tried to pull to the right as far as I could go and apply my brakes." At the time he was going "approximately 23 miles per hour."
He was asked by his own attorney:
"Q. When your car reached Stengel Avenue and you saw Waldor coming into Elizabeth Avenue, what was the very first thing you
saw his car do? A. Come out of the park quickly and make a sharp left turn.
Q. Could you tell from the way he was making the turn whether he was going to turn into Elizabeth Avenue to the left of you or whether he was going to cut across the front of you ? A. It appeared as though he would cut across the front of me." (Italics ours)
Expert proofs were offered by Stanley tending to indicate that paint particles on the left rear chromium strip of the Stanley car had come from contact with the Waldor car.
The defendant Waldor was called as a witness by the Greenberg plaintiffs. He testified that he made a full stop at the Elizabeth Avenue curb line and looked left and right. On the left he saw a car coming north from Lyons Avenue, which is a block away (on the park side; two blocks away on the west side of Elizabeth Avenue). On the right he saw the Stanley and Wuhl cars standing still at the Lehigh Avenue traffic light. No cars were parked on Elizabeth Avenue between Lehigh and Stengel Avenues. He moved into Elizabeth Avenue, starting at about five or ten miles per hour, and turned left, after which he straightened southerly and was going 15 to 20 miles per hour. Just as he started he saw the light at Lehigh Avenue turn green. When the left turn was completed he was in the middle of the western half of Elizabeth Avenue, with enough room to the center of the street to permit a car to pass on the left. On cross-examination he said there was also "plenty of room for a car to pass" on the right. He did not see the Stanley car again until he was "straightaway south," when he heard the screening of brakes and looked through his right rear window and saw the Stanley car "coming alongside of me" and traveling "very fast." The front of the Stanley car was then alongside the driver's seat in the Waldor car. At that point the Waldor car had reached the middle of the Stengel Avenue intersection, having proceeded about 30 feet from the park exit. Then he saw the Stanley car jump the curb and hit the pole with a "very terrific impact." Waldor pulled over to the curb and got out of his car. Seeing the serious situation he drove to a store on Lyons Avenue a
block away, called the police, and walked back to the scene of the accident.
The portion of Waldor's cross-examination by Stanley's attorney culminating with the motion for a mistrial takes up the chronology at this point and is set forth in the appendix as follows:
"Q. You heard people talking about a green car, didn't you? A. Yes, sir.
Q. Did you tell any of those people who were talking about a green car that you were the owner of the green ...