For reversal -- Chief Justice Weintraub, and Justices Burling, Jacobs, Francis, Proctor, Hall and Schettino. For affirmance -- None. The opinion of the court was delivered by Schettino, J.
Appeal is from a judgment of the Appellate Division (52 N.J. Super. 513 (1958)) affirming a Superior Court, Law Division, judgment in favor of defendant upon a jury's verdict of no cause of action. This is an infant pedestrian-motor bus negligence case for personal injuries on behalf of the infant plaintiff and for the parents' per quod. We granted certification. 29 N.J. 62 (1959).
The infant plaintiff (hereinafter referred to as "plaintiff") was 4 years, 1 month and 19 days old on the date of the accident, June 13, 1956. At that time the Bush family consisted of the parents, plaintiff, and three other children whose ages were three years, two years and six months. They resided at 67 Chadwick Street, paterson, approximately one block from a heavy traffic intersection of Main and Mary Streets, the point where plaintiff received his injuries. On this day, Mrs. Bush sent plaintiff and his three-year-old sister out to play on their tricycles. The children wandered a block away to the above mentioned intersection. Apparently plaintiff left his sister and the two tricycles on the near side of the intersection and crossed the street. The evidence indicates that the boy was returning to his sister and the tricycles when he either ran into the rear, or was struck by the front, of the corporate defendant's bus. During the course of the trial plaintiffs took a voluntary dismissal as to the driver of the bus, Stanley J. Malorgio.
There was no eyewitness to the accident. Defendant's bus was proceeding in the southbound lane of Main Street.
There was a group of telephone company employees working in a manhole at the opposite side of the intersection in the northbound lane. A civil engineer placed this manhole well over on the easterly side of the street. A member of the Paterson Police Department investigated the incident and testified that when he saw plaintiff, plaintiff was lying in the road alongside the left rear wheel of the bus and that the bus was "parked in the intersection, in the middle of the road," and there were no skidmarks. He further testified that he interrogated the bus driver, and that when he asked the driver what had happened, the driver told him that he was driving south on Main Street, he had a green light, he was going through the intersection when he heard a thump, he immediately stopped the bus, and when he got out, he saw the plaintiff lying there alongside the left rear side of bus.
The deposition of the bus driver was read into evidence. He stated that he was driving southerly on the proper side of the road, that there was "Lots of clearance" between the bus and the manhole, that he looked into his rear view mirror to see if he had cleared the manhole area because of "force of habit," that he did not see the child before the impact, that through his rear view mirror he saw the child bounce off the bus right at the intersection and that it took him "about thirty-five or forty feet" to stop the bus.
On direct examination he testified that he was proceeding southerly on Main Street, that when he was at Weiss Street, a block before Mary Street, he observed a red traffic light facing him at the intersection of Main and Mary Streets, that he was travelling at a speed of from 10 to 12 miles per hour and that the light turned green for him shortly before he reached Mary Street. Malorgio stated that he looked to the corner on his right for prospective passengers and, seeing none, he continued straight through the intersection at the same speed. After entering the intersection he looked into his rear view mirror to determine whether he had "cleared the men" working at the manhole although there
was admittedly plenty of clearance and there was no evidence of men actually working on the surface. He had not seen plaintiff at any moment before he saw the boy bounce off the rear left wheel of the bus. He again stated that he brought the bus to a stop in 35-40 feet. The bus was 32-35 feet long. Malorgio emphatically denied telling the police officer that he found the child lying alongside the left rear of the bus.
A repairman working at the manhole testified that the child was lying within a bus length of the bus, approximately 35 feet, and was in the northerly, or opposite, traffic lane. The witness stated further that he examined the rear of the bus and found a large, fresh black mark on the left rear tire where the dust of the road had been wiped from it.
Another manhole workman testified that he saw the boy lying very near the manhole in the northerly lane and saw the bus a block away at the next bus stop.
At the conclusion of the testimony and after the denial of a motion for judgment by defendant, the trial court instructed the jury that the care required of an infant old enough to be capable of negligence is that care that is usually exercised by persons of similar age, judgment and experience and that in determining whether a child old enough to be capable of negligence has been guilty of contributory negligence "it is necessary to take into consideration the age of the child, its experience and capacity to understand and avoid dangers to which it is exposed in the actual circumstances and situation under investigation." Plaintiff's counsel objected to the instruction and to the submission to the jury of the question of contributory negligence. He argued that under the proofs plaintiff could not have been guilty of contributory negligence and that the court should decide the question of contributory negligence in plaintiff's favor rather than submit it to the jury as a question of fact.
The jury returned a verdict of "No cause for action in favor of the defendant." It is, of course, impossible to determine whether the jury found the total absence of negligence
by defendant or contributory negligence by the ...