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Mengle v. Shields

Decided: December 1, 1958.

ANNA MENGLE AND MATTHEW E. MENGLE, PLAINTIFFS-RESPONDENTS,
v.
HOWARD J. SHIELDS, DEFENDANT-APPELLANT



Goldmann, Conford and Haneman. The opinion of the court was delivered by Goldmann, S.j.a.d.

Goldmann

Defendant appeals from a judgment in plaintiffs' favor entered by the Superior Court, Law Division, following a trial without a jury in an automobile negligence case wherein Mrs. Mengle sought damages for personal injuries and her husband sued per quod.

The evidence bearing upon the occurrence of the accident is contradictory. Neither witness gave a sharply definitive account of the mishap, and the record is made even more unsatisfactory because Mrs. Mengle and defendant constantly referred to a blackboard diagram (not reproduced) and to

a photograph (reproduced) without verbal explanation of just what they were describing. The loss in clarity and significance of some of their testimony as to just how the accident happened could have been avoided by the simple process of trial counsel or the court briefly noting for the record exactly what was being referred to. Such clarification is to be encouraged in the interest of preserving a clearly understandable record on review. The trial court is in the fortunate position of being able to follow the gestured explanations of the witnesses; we have only the printed page before us.

The first point of appeal is that the evidence does not support the verdict -- specifically, there was no adequate basis in the record for rejecting defendant's testimony that he had come to a complete stop prior to plaintiff's coming into contact with his left front fender. The accident happened where Helena Avenue runs into Kenilworth Avenue, Delaware Township, forming a T intersection. Mrs. Mengle testified that she was crossing Kenilworth Avenue from its intersection with Helena Avenue; that she had looked both ways before starting to cross and had seen no one coming, and that she had taken six or eight steps before being struck by defendant's car. Asked on cross-examination if she had seen the car, she replied, "I didn't see anything, it came so fast; I screamed, I didn't know what to do with myself." Defendant, in turn, testified that he was making a right-hand turn from Helena Avenue into Kenilworth Avenue when he saw Mrs. Mengle walking in the street, and as she started to cross he came to a full stop; "she turned around and * * * actually hit the fender of my car and actually jumped in the air, the shock of just seeing the car, and then she actually fell down into the street * * *." After commenting on the testimony, the trial judge concluded that defendant's negligence in making the right-hand turn was the proximate cause of the accident.

Negligence was clearly a factual issue for resolution by the trial judge. There is enough in the record to support his finding of defendant's negligence. Physical

contact with defendant's fender is admitted. It is difficult to accept defendant's story that he saw Mrs. Mengle in full view 25 feet away as he approached Kenilworth Avenue; that he had half completed his turn from Helena Avenue and was at full stop, and that she suddenly walked directly into his left front fender, jumped two feet into the air and then landed on her face, suffering the injuries hereinafter detailed. But even if we were to take defendant's story at face value, it would not necessarily preclude a finding that plaintiff was injured as a result of his negligence. The trial judge was free to determine, as his oral findings would indicate, that defendant's car came upon plaintiff without warning, so suddenly and so closely that she was startled and moved violently against the fender, thereby sustaining injuries.

Defendant next contends that the evidence does not support the award of $2,750 to Mrs. Mengle and $921.63 to her husband for out-of-pocket expenses. Mrs. Mengle's injuries included a cerebral concussion; bruises about one eye, which was closed; facial lacerations; abrasions of the kneecap and the dorsal of the left foot; bruises of the left leg and a small cut on the foot; her nose was swollen and tender; the inside of her mouth was lacerated; her dental plate fractured, and her lower teeth, already somewhat loose, further loosened so that they had to be removed. She was hospitalized about ten days. At the trial she complained of a pain at the back of her head where she was hit, severe headaches, and pain in raising and lowering her arms, which prevents her from doing heavy housework. The treating physician testified that she has developed severe headaches and a state of anxiety.

Defendant does not specifically argue that the award of $2,750 is excessive, but claims that the method used in arriving at that figure was incorrect. The trial judge had remarked that since the out-of-pocket expenses were $1,023.65, it meant that "this woman must have sustained some injuries." Defendant contends that the court used this figure as a basis for computing damages for pain, suffering and physical

injuries. Consideration of the trial judge's oral findings as a whole does not indicate that his reasoning proceeded in the manner defendant says it did. The court's comment can be given no broader significance than that which appears on its face, namely, that the out-of-pocket expenses bespeak the fact that the ...


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