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Cermak v. Hertz Corp.

Decided: January 19, 1959.

PAUL CERMAK, PLAINTIFF-RESPONDENT,
v.
THE HERTZ CORPORATION, ETC., DEFENDANT, AND AETNA METALCRAFT, INC., ETC., AND OLINTO J. DIGEORGE, JOINTLY, ETC., DEFENDANTS-APPELLANTS



On appeal from a judgment of the Superior Court, Appellate Division, whose opinions are reported at 53 N.J. Super. 455.

For affirmance -- Chief Justice Weintraub, and Justices Wachenfeld, Jacobs and Francis. For reversal -- Justices Heher, Burling and Proctor. Heher, J. (dissenting). Burling, J. (dissenting). Proctor, J. (dissenting).

Per Curiam

The judgment is affirmed for the reasons expressed in the majority opinion of the court below.

HEHER, J. (dissenting).

Negligence in a given case is measured by the supposed conduct of a reasonable man of ordinary prudence under the same or similar circumstances; and so it is a mixed question of law and fact. The court's function is to determine the existence of a duty under the law and to declare the general standard of conduct and whether there has been individual conformance to the required standard where the judgment of reasonable men clearly and indubitably could not differ as to the conclusion; and the jury's province is to determine the facts and the standard of conduct required where the judgment of reasonable men might differ. The distinction is fundamental in our jurisprudence, involving as it does an inquiry ruled by the more or less subjective standard embodied in the ideal, conceptual person of practical experience and judgment,

the ordinarily prudent and careful person, in which there is a separation of the functions of court and jury according to the constitutional right of trial by jury. Hughes v. Atlantic City & Shore R.R. Co., 85 N.J.L. 212 (E. & A. 1914); Schmidt v. Marconi Wireless Tel. Co., 86 N.J.L. 183 (E. & A. 1914); Erwin v. Traud, 90 N.J.L. 289 (E. & A. 1917); Sharpe v. Public Service Ry. Co., 103 N.J.L. 583 (Sup. Ct. 1927), affirmed 109 N.J.L. 272 (E. & A. 1932); Hager v. Weber, 7 N.J. 201 (1951); Prosser on Torts (2 d ed.), 124 et seq., 191 et seq. And see Bohlen, "Mixed Questions of Law and Fact," 72 U. Pa. L. Rev. 111, 112 (1924).

"Reasonable care" has a relative significance; the term is lacking in the definitive quality that will automatically resolve the individual case. The common law concept of negligence is at base one of duty arising out of the particular facts and circumstances to protect another against unreasonable risk of harm as an invasion of the essential interest of the other. "Reasonable conduct" does not admit of a purely objective test. While the criterion of conduct is fixed, what constitutes adherence to the rule of necessity depends upon the special circumstances, and so the issue is almost always left to the experienced wisdom and judgment, so controlled, of the triers of the facts. The ultimate question is what in fact a reasonably prudent man would do under like circumstances to obviate the danger to another, known or reasonably foreseeable; and experience is necessarily a major factor in the application of this comparative standard. Niles v. Phillips Express Co., 118 N.J.L. 455 (E. & A. 1937). The "reasonable man of ordinary prudence" is described by Dean Prosser, Ibid., 125, as "a personification of a community ideal of reasonable behavior, determined by the jury's social judgment."

It was the peculiar province of the jury to determine what a reasonable man of ordinary prudence would have done in the circumstances here.

The plaintiff testified that, proceeding in a westerly direction on Mercer Street while "it was raining very hard," he

"gradually stopped at the intersection of Mercer and Fremont Streets," intending to turn north into Fremont Street and "park his car" nearby; his car, he continued, "stood there at the intersection for two minutes because of the very heavy traffic" on Fremont Street; through the mirror he observed defendant's truck "some distance" to the rear "and when he looked again this truck loomed up" and the collision occurred; he described it as "a pretty good smash," but there was evidence of a "slight impact" and "light damage" to his car; traffic at the intersection there was not controlled by "signs or lights" or otherwise.

The operator of the truck, on the other hand, said that he "was driving west on Mercer Street and saw plaintiff's car standing stopped, 40 or 50 feet in front, and it appeared to [him] as if the plaintiff would take off again because his rear stop light went off, whereupon [he] started up again and when plaintiff failed to move, * * * [he] skidded into the rear of the plaintiff's car"; he "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 ...


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