Price, Haneman and Schettino. The opinion of the court was delivered by Schettino, J.A.D. Haneman, J.A.D. (dissenting).
This is a negligence action arising out of an automobile accident. The case was tried in the district court after having been transferred there from the county court. The cause of action as against defendant Hertz was dismissed by consent of the parties. The jury returned a verdict in the sum of $15,000 against defendants-appellants and, following a motion by defendants for a new trial, the trial court reduced the verdict to $8,500.
The record of this trial which was not taken stenographically, has been settled pursuant to R.R. 1:6-3. The automobile accident occurred on March 8, 1956. Plaintiff was stopped at the intersection of Mercer and Fremont Streets in Jersey City waiting for heavy traffic on Fremont Street to clear so that he could make a right hand turn on that street when a truck leased from the Hertz Corp. and driven by defendant, DiGeorge for defendant, Aetna Metalcraft, Inc., struck the rear of his car. After counsels' summation to the jury the trial court removed the issue of negligence and limited its consideration to the questions of proximate cause of the claimed injuries and damages.
Appellants contend that this was error. The evidence, as set forth in the record settled by the court, is as follows:
"Plaintiff testified that on or about 10:10 o'clock A.M. on the 8th day of March 1956 plaintiff was operating his passenger automobile in a general westerly direction on and along Mercer Street, which runs east and west, [and that he] gradually stopped at the intersection of Mercer and Fremont Streets, Fremont Street running north and south. Plaintiff was alone in his automobile and it was
raining very hard; he intended to go into the nearby Safeway Store's office to repair a typewriter machine. There was no traffic on Mercer Street other than the vehicles of plaintiff and defendant. His automobile stood there at the intersection for two minutes because of the very heavy traffic proceeding north and south on Fremont Street ; he intended to make a right turn on Fremont Street in order to park his car and while standing in a stopped position he looked in his rear mirror and saw the defendant's truck some distance away also proceeding in a westerly direction on Mercer Street and when he looked again this truck loomed up and the front of the defendant's truck struck the rear of plaintiff's car 'with a pretty good smash' and knocked his car into the intersection and the trunk lid in the rear of plaintiff's car sprung up. Photographs were admitted into evidence as Exhibits marked P-1, P-2, P-3 and P-4; there were no policemen or traffic signs or lights controlling the traffic at this intersection." [Emphasis added.]
"* * * Olinto J. DiGeorge was sworn and he stated he was the driver of the defendant, Aetna Metalcraft Inc., that his truck struck plaintiff's car in the rear; he was driving west on Mercer Street and saw plaintiff's car standing stopped, 40 or 50 feet in front, and 'it appeared to me as if the plaintiff would take off again because his rear stop lights went off' whereupon the defendant started up again and when plaintiff failed to move, he struck the rear of the plaintiff's automobile; plaintiff's automobile was proceeding about 15 to 20 miles per hour before it stopped at the intersection.
That it was raining very hard and that when defendant attempted to stop he had to fight his wheel to keep it straight; and skidded into the rear of the plaintiff's car; that the plaintiff got out and complained of pain in his neck; that the defendant had two ton load on a 1956 International; that his brakes were in good condition and it was a new truck. After the accident he saw 'oil slickers' on the wet pavement.
On cross examination he testified that the plaintiff [defendant, DiGeorge?] (sic) applied his brakes when the plaintiff did not proceed from his standing position after his stop lights went off and indicated to him that the plaintiff was going to go forward again and because the plaintiff's automobile did not go ahead he hit his brakes and was unable to stop in time. He applied his brakes with great pressure and put on his emergency brake but skidded into plaintiff's standing automobile, admitting he had misjudged plaintiff's movement.
Note by the Court: The Court significantly points out as part of this record that the reference was made by the defendant's driver to 'oil slickers' was not explained nor specifically located with respect to the status of the collision. Nothing further was brought out either on direct or cross-examination concerning its extent, cause or effect and was left barren and any causal [causal] connection to the incident involved." (Emphasis added.)
Initially it should be noted that this agreed statement seems to contain an inconsistency insofar as plaintiff testified that he was stopped at the intersection for two minutes, and that during that time he observed in his rear view mirror defendants' truck approaching from some distance away whereas DiGeorge testified that plaintiff's automobile was proceeding about 15 to 20 m.p.h. before it stopped at the intersection. In any event the inconsistency does not present a factual issue which would bear upon defendants' negligence or any suggestion of plaintiff's contributory negligence. Even had DiGeorge seen plaintiff prior to the time plaintiff stopped, no issue is raised by defendants nor inferable from the facts that plaintiff's speed prior to stopping or anything done by him in the act of stopping contributed to the happening of the accident.
Thus the issue of liability has its inception in the facts from the time plaintiff was actually stopped on Mercer Street at the intersection waiting for an opportunity to make a right-hand turn to Fremont Street and defendants' truck was approaching from the rear at a distance of 40 or 50 feet. Plaintiff's rear stop lights went off, and DiGeorge "started up again." It is not self evident from this statement as to whether DiGeorge stopped his truck completely or merely slowed down before "starting up again" and crashing into the rear of plaintiff's motionless vehicle, but it is clear from the record that defendant saw plaintiff stopped at the intersection and that the cause of the collision was the fact that DiGeorge "misjudged plaintiff's movement." He so admits as above noted.
Furthermore, counsel for the defendants in his summation to the jury stated that "he could not find fault with the jury if it found a verdict for the plaintiff on the question of negligence," whereupon the trial court removed this issue from the jury's consideration.
In this context we fail to perceive any conflicting inferences from which the jury could have reasonably returned a verdict on the question of negligence other than in favor
of plaintiff. Defendants urge that contributory negligence of plaintiff could be bottomed upon the fact that his rear lights went off as defendants' truck was approaching. This bare contention, without more, is erroneous. There was no duty upon the plaintiff to keep his brake lights lit once his vehicle was stopped, nor to put his car in motion the instant he took his foot off the brake. DiGeorge's absolute reliance upon this factor was as foolhardy as it was impractical.
Therefore, we conclude that the trial court was correct in removing the issue of negligence from the determination of the jury since the record shows that there were no disputed questions of fact nor conflicting inferences to be reasonably drawn therefrom which could be determined by it. Ferdinand v. Agricultural Ins. Co. of Watertown, N.Y. , 22 N.J. 482, 493 (1956). In similar situations the courts have often phrased this determination as a matter of law to be decided by the judge and not the jury, but it would seem to be more accurately stated that, in the absence of a factual conflict, the fact-finding function of the jury has no issue upon which it can operate so that it is the duty of the court to accept the facts as they are presented. In a strikingly similar situation in the case of Burr v. Metropolitan Distributors, Inc. , 136 N.J.L. 583 at pages 585 and 586 (1948), our Court of Errors and Appeals outlined the principles applicable to such a situation when it said:
"The legal principles applicable to this appeal have been well stated by this court in the case of Crosby v. Wells , 73 N.J.L. 790; 67 A. 295, 299. The court said: 'In our country, a verdict may be directed for a plaintiff as well as for a defendant. * * * And the question to be propounded is whether there be any reason why the verdict should not be so directed. * * * The principles with which the answer must accord have been stated in our reports in both positive and negative form. Firstly, the trial court should direct a verdict, when any number of verdicts, if found otherwise than as ordered, would be set aside as without sufficient evidence to support them * * * or when the testimony in the case will not support any other verdict * * *. Secondly, the trial court cannot direct a verdict when any material facts which the parties have been permitted to introduce are in dispute.'"
Appellant also urges that the trial court erred in failing to order a new trial on the grounds that newly discovered evidence was found after the trial which tended to prove that plaintiff had perpetrated a fraud upon the court by intentionally misrepresenting the nature and extent of his injuries. In that regard it should be noted that, from interrogatories, defendants knew that plaintiff had suffered a previous accident on September 8, 1954 while servicing a typewriter and a compensation petition was pending at the time of this trial. The injuries claimed in the compensation petition were in many ways similar to the injuries sustained in the automobile accident insofar as they involved the spine and sciatica, and the nervous system.
Nevertheless the affidavits and the stenographic record of the hearing on defendants' motion for a new trial show many inconsistencies particularly relating to plaintiff's alleged injuries. The principal basis for defendants' motion is the fact that they discovered, immediately after trial, that plaintiff had instituted a third-party negligence action against American Book Stratford Press, Inc. (Docket No. A-725-56, wherein this court upheld the trial court's dismissal on the ground of no proof of negligence) at the same time he had filed the workmen's compensation petition against his employer, Remington Rand. In connection with that third-party action, plaintiff was examined by American's physician, Dr. Klaus, approximately five weeks prior to the trial of the case at bar. The affidavit and oral testimony of Dr. Klaus at the hearing on defendants' motion in this case established that plaintiff never mentioned the automobile accident and the injuries resulting therefrom.
Plaintiff did not deny this contention but maintains that he was never questioned about any occurrences subsequent to the typewriter incident and did not volunteer the information. His position was corroborated by a representative of his attorney who was at all times present during the examination, and the trial court chose to accept this as fact. Dr. Klaus testified that plaintiff's complaints were limited to his arm, back and leg, and that he had "no
headaches or dizziness and no change in vision or hearing" and no complaints regarding his head and neck. However, these complaints were the subject matter of plaintiff's claim for damages in the trial of this case just five weeks later.
Despite the conflicting evidence and the inconsistencies which the record of the hearing on this motion for a new trial reveals, we find that the inconsistencies were the result of plaintiff's attempt to separate and allocate his various injuries to the distinct accidents, namely the typewriter fall on September 8, 1954 and the automobile accident on March 8, 1956. This was indeed a difficult thing to do since the whiplash of the automobile accident allegedly affected plaintiff's neck and back, while the fall while servicing the typewriter was claimed to have caused injury to his arm and back. Furthermore, the evidence, including the medical testimony, indicates that plaintiff was both hypersensitive and unduly preoccupied with the nature and extent of his injuries, and the conclusion is inescapable that there was a certain amount of puffing with regard to his subjective complaints. However, this is not tantamount to perjury which is the willful assertion as to a matter of fact, knowing such to be false, with the intent of misleading the court or jury.
"* * * Perjured testimony that warrants disturbance of a final judgment must be shown by clear, convincing and satisfactory evidence to have been, not false merely, but to have been wilfully and purposely falsely given, and to have been material to the issue tried and not merely cumulative but probably to have controlled the result. Further, a party seeking to be relieved from the judgment must show that the fact of the falsity of the testimony could not have been discovered by reasonable diligence in time to offset it at the trial or that for other good reason the failure to use diligence is in all the circumstances not a bar to relief." Shammas v. Shammas , 9 N.J. 321, 330 (1952).
Defendants further contend that they could not have obtained knowledge of the existence of this third-party action prior to the trial by the exercise of due diligence. They urge that ...