On appeal from the Superior Court, Appellate Division.
For reversal -- Chief Justice Weintraub, and Justices Heher, Wachenfeld, Burling, Jacobs, Francis and Proctor. For affirmance -- None. The opinion of the court was delivered by Weintraub, C.J.
[29 NJ Page 141] Mr. and Mrs. Ambrose recovered judgments for personal injuries (including loss per quod [ILLEGIBLE WORD] by the husband) against both defendants. Plaintiffs were passengers in Cyphers' car when Cyphers, facing west, left a parked position at the curb to execute a U-turn and was struck by Donnelly who was proceeding westerly. Donnelly did not defend. His negligence was clear. The actual contest was between plaintiffs and Cyphers. On Cyphers' appeal, the Appellate Division reversed, finding error (1) in a supplemental charge with respect to the duty of a driver making a U-turn, and (2) in taking from the jury the question of contributory negligence of Mrs. Ambrose.
Ambrose v. Cyphers, 50 N.J. Super. 329 (1958). We granted plaintiffs' petition for certification. 28 N.J. 33 (1958).
The trial judge several times charged negligence in the conventional terms of the failure to exercise the care of a reasonably prudent man under the circumstances, and in fact closed his instructions by reading defendant's request to the same effect. However, with specific reference to a U-turn, he charged that if the jury found that Cyphers was making such turn (actually a conceded fact), then "it was the duty of the defendant Cyphers to exercise great care and to seek an opportune time to make such a left turn or U turn." Cyphers objected in these words:
"It is not a correct statement of the law. That was the statement about great care. The cases held that the care must be commensurate with the circumstances even if, as I understand the case, a greater degree of care than ordinary care must be used."
Defendant thus protested against the use of the term "great care," although it is not clear (a) whether he meant that the court should have said that "a greater degree of care than ordinary care" was required, or (b) whether he meant that the court should have charged only that the care required is that "commensurate with the circumstances," thus leaving it to the jury to decide whether such care in the circumstances should be greater than ordinary care.
The Appellate Division found no error in the main charge, but did find error in the supplemental instructions, as to which the record reads:
"THE COURT: Members of the Jury:
You have sent me a note which reads as follows: 'Is great care or reasonable care a consideration in this matter?'
Yes, it is. You must remember that they were invited guests in the car of the defendant Cyphers and I said to you that if you
find from the evidence that prior to the accident the automobile of the defendant Cyphers was standing in a parked position at the north curb of Central Avenue facing in a westerly direction and it was his intention to start from that position and proceed to make a left U turn to go east on Central Avenue it was the duty of the defendant Cyphers to exercise great care and to seek an opportune time to make such left turn, and that if he failed to exercise such great care then he violated the duty that the law placed upon him with respect to any invited guest, and this constitutes negligence on the part of the defendant Cyphers."
Cyphers objected to the supplemental charge. The objection, not being particularized, must be assumed to be the same one advanced to the main charge. The Appellate Division found error, not because it was improper to require "great care," but rather because the supplemental charge failed to state:
"that there is only one basic standard of care -- reasonable care under the circumstances -- and that a driver about to make a left-hand turn across oncoming traffic, or a U-turn is undertaking an extraordinary traffic hazard and in doing so is expected by the law, as a reasonably prudent person, to seek an opportune or safe time to do so. It was not fatal, as we have already observed, that the court used the terminology 'great care,' but there was error in that it failed to relate the special degree of precaution required in the particular exigency to the general standard of reasonable care basically applicable to the conduct of the defendant all through the entire episode. 'Reasonable care' was not even mentioned in the supplemental instruction." (50 N.J. Super., at page 338.)
We observe in passing that the basis for reversal was not the objection advanced by defendant.
Parenthetically, we note that the Appellate Division added that "Indeed, from the supplementary charge, the jury may well have understood that there was a special duty of great care because the plaintiffs were invited guests, rather than because of the hazards of the left-hand U-turn." (50 N.J. Super., at page 338). It is not clear that it would matter if that observation were correct. In any event, we are satisfied the jury must have understood that the reference was ...