Schettino, Hall and Gaulkin. The opinion of the court was delivered by Hall, J.A.D.
Plaintiff appeals from a judgment for respondent entered in the Law Division on a jury verdict of no cause for action. He sued the Misiuks for injuries said to have been sustained when the Misiuk car, owned by George and driven by Henry, in which he was a passenger, ran into a telephone pole. The action against George was voluntarily dismissed after the opening statements and thereafter the case continued against Henry only.
Several grounds for reversal of the judgment are urged, but only one -- the claimed improper remarks of defense counsel (not the counsel for respondent on this appeal) during summation -- needs to be considered.
After the adverse verdict plaintiff moved for a new trial on various grounds, including one that the verdict resulted
from improper and unfair means by reason of the remarks in summation. The trial judge denied the motion and the same question is raised by plaintiff's assertion that the denial was erroneous.
Paxton was a resident of Paterson, 54 years old, married with children, and employed. He patronized a Paterson tavern which belonged to a relative of Henry's, in which the latter, aged 28, was a bartender.
About one o'clock on a Sunday afternoon in May 1956 Henry happened to meet plaintiff in front of the tavern and invited him to go for a ride. Paxton accepted the invitation, and the two of them proceeded to the home of one Kane, a mutual friend, in Stockholm, New Jersey. After a short visit with Kane, they visited taverns in the general area until about 11 P.M., when they returned to Kane's home. There they had something to eat, after which they visited another tavern in McAfee. In this place Henry met two women, whom they drove home. On cross-examination, Paxton testified:
"Q. And while at the Colonial Inn at McAfee you met two young ladies and took them home, did you not?
A. I am not sure I met them. They were there and I believe Henry was asked to take them home. They had no way of getting home.
Q. Then after that you started on this return trip to Paterson? A. Yes, sir."
The accident occurred about 3 A.M., approximately one-half hour after they had "dropped" the women. Henry had been driving toward Hamburg on Route 94, and had stopped for a light, blinking red against him, at the intersection of Route 23 in the center of that town. He then attempted to make a left turn into Route 23 to go toward Paterson. Paxton's version of the accident was that "Henry stopped at the intersection for the light and waited a few seconds and then proceeded out into 23, and instead of making a complete turn into 23 he went across and hit the pole on the far corner, which is swinging wide of the corner." On the other hand, Henry said that he had been forced to
run into the pole, to avoid being hit by a speeding car coming from the direction of Paterson on Route 23, which had appeared suddenly over the brow of a hill to his left.
Both men were removed by ambulance to the hospital in Franklin, where they received first aid. The automobile could not be driven. Knowing that Kane would have to drive to Paterson to work that morning, they had the police drive them, at dawn, from the hospital to Kane's home, where they sat in Kane's car until he came out of his house. He drove them to Paterson, and left them at the tavern where the trip had commenced. Paxton sat in the tavern a while, and then Henry took him to the Barnert Hospital in Paterson. After examination there, he went home.
On cross-examination Paxton was asked the following questions, which are, as an example, significant in considering the propriety of the remarks of defendant's counsel in his summation:
"Q. Mr. Kane was a friend of yours, was he not? A. Yes.
Q. Now, when Mr. Kane returned to Paterson you were taken to the saloon on 2 Holsman Street, is that right? A. That is correct.
Q. Did you ask to go there? A. I went there because Henry was going there.
Q. Did you ask to go there? A. I didn't.
Q. You didn't ask him to take you home, did you? A. No, sir.
Q. He would have taken you home had you asked him to? A. No, I don't believe he would ...