Price, Hall and Gaulkin. The opinion of the court was delivered by Hall, J.A.D.
The question on this appeal is the propriety of the action of the trial judge in the Law Division in granting plaintiff's motion for a new trial following a jury verdict of no cause for action. The basis of the motion was alleged error in the comments of the court to the jury concerning its further deliberations after a request for additional instructions.
The suit, grounded in negligence, sought recovery for personal injuries and property damage claimed to have been suffered by plaintiff as a result of a collision between the automobile he was driving and a bus owned by the corporate defendant and driven by the individual defendant. After the charge to the jury, defense counsel orally asked the judge to charge the so-called "equipoise doctrine." He attempted to do so in this unclear language: "* * * if in determining the facts here your opinion is equally divided or your consideration of the facts are equally divided and equal in all respects, then of course under that circumstance the defendant is entitled to a verdict of no cause for action."
The jury then retired and, after deliberating for about an hour and a quarter, returned for further instructions requested in the following note handed up to the judge:
"We, the jurors, are uncertain about what the results of a 6 to 6 vote by the jury would mean. Some of us feel that as per your instructions before our exit from the courtroom this vote of 6 to 6 would ascertain a decision in favor of the defendants. Please advise us if this is a correct or improper assumption."
The question urged on this appeal arises from what the judge then said and it is best presented by direct quotation from the transcript:
"The Court: In the first place, Ladies and Gentlemen, if I understand your note, six to six vote means nothing. You cannot arrive at a decision with a six to six vote.
I told you earlier that under the laws of New Jersey this case can be decided by ten of you, eleven, or twelve, but no less than ten. Does that answer part of your question?
Now the other fact that six of you believe one way and six believe another also does not decide anything. If all of you, or ten of you believe that the testimony stands in the balance, in equipoise, that neither side has carried the burden and that the testimony is equally balanced between the parties, then of course the defendants will be entitled to a verdict of no cause for action. But that is not your situation here. None of you have agreed on anything. That is the way you are. I must have a verdict by at least ten of you. That verdict must be based upon the evidence. If you cannot agree, it will mean that I will have to discharge you and have this case tried over again in the future, but not by this same panel. I don't want to do that, so I am going to keep you out there for awhile because I want a verdict.
To try a case over of this kind or any kind is expensive to the people, to you, to the State, and to the County. It would mean another trial and to do that I would avoid that if I possibly could.
Now have I answered your questions, ...