On appeal from the Superior Court, Appellate Division.
For reversal in part and affirmance in part -- Justices Burling, Francis, Proctor and Hall. For affirmance in part and reversal in part -- Chief Justice Weintraub and Justice Jacobs. The opinion of the court was delivered by Hall, J. Weintraub, C.J. (dissenting). Jacobs, J., joins in this dissenting opinion.
This litigation arose from a tragic accident which occurred on the sidewalk running along the west side of Elizabeth Avenue, a short distance south of the corner of Stengel Avenue, in Newark on June 26, 1956. Mrs. Debra Greenberg and a friend were wheeling their infant children in carriages on the sidewalk in a southerly direction. James Stanley was driving his automobile in the same direction near the westerly curb. He, along with other cars, had just resumed travel after stopping for a traffic light at Lehigh Avenue, one short block to the north. Immediately before coming abreast of the mothers and their baby carriages, his car suddenly veered over the curb, struck Mrs. Greenberg and the carriage from the rear, killing the child and injuring the mother, and then collided heavily with a pole within the sidewalk area. He suffered personal injuries and damage to his vehicle.
Weequahic Park extends along the east side of Elizabeth Avenue for a considerable distance in the general vicinity. An instant before the mishap Samuel Waldor drove his car out of a park exit almost opposite but slightly to the north of the intersection of Stengel Avenue with the west side of Elizabeth Avenue. He turned left across the north lanes of Elizabeth Avenue, a wide thoroughfare at that point, and proceeded to go south thereon as Stanley reached Stengel Avenue. The latter claimed that Waldor's entrance onto Elizabeth Avenue was made at a fast rate of speed, without obeying the stop sign at the park exit or observing the southbound traffic, and was so sweeping as to come close to the west curb, resulting in the forward progress of the Stanley car being blocked or "cut off," or threatened so to be, and thereby unavoidably forced to swerve onto the sidewalk without any fault on his part. He also contended that Waldor's
vehicle actually touched his, but could not say that, if such were the case, it had any effect on his course. Waldor, on the other hand, asserted that he stopped and looked carefully before entering Elizabeth Avenue, and observing nothing to make a turn imprudent, proceeded slowly and straightened out with sufficient room for a car to pass on his right and that Stanley came up speedily, without proper observation or recognition of traffic leaving the park, drew almost abreast closely on his right and then suddenly mounted the curb. Waldor denied any contact between the cars and took the position that he was in no way the cause of or to blame for Stanley's swerving onto the sidewalk and the unfortunate consequences.
The Greenbergs charged both drivers with concurrent negligence in a suit seeking recovery for the child's wrongful death, Mrs. Greenberg's injuries and her husband's consequential damages. In their answers each driver denied his own negligence and in effect charged the negligent conduct of the other to be the sole cause of the Greenbergs' damages. By a separate action Stanley sued Waldor for his personal injuries and property damage. The latter's answer alleged contributory negligence by Stanley. No cross-claim for contingent relief under the Joint Tortfeasors Contribution Law (N.J.S. 2 A:53 A -1 et seq.) was filed by either driver (R.R. 4:13-6). The cases were consolidated for trial. R.R. 4:43-1(e).
At the trial neither claimed there was any contributory fault to bar the Greenbergs and it developed into a contest between the two drivers, each seeking to pin sole responsibility upon the other. The testimony by the drivers and the four witnesses who had observed all or part of the split-second events immediately preceding the tragedy was highly conflicting. Mrs. Greenberg had not seen either car before she was struck. The evidence is thoroughly analyzed in the opinion of the Appellate Division shortly to be referred to and all of it need not be repeated. The proofs were concededly such that it was open to the jury to find either
or both operators negligent. Exculpation of both could not be sustained.
The verdict in the Greenberg suit absolved Stanley by a finding of no cause of action in his favor and assessed damages against Waldor alone of $10,000 on the wrongful death claim, $27,500 in favor of Mrs. Greenberg and $1,000 for her husband. Stanley was awarded $10,000 in his action against Waldor. The latter's motion for a new trial upon all issues as to all parties in both suits, on which it was claimed the verdicts were against the weight of the evidence both as to liability and damages and should also be set aside for certain trial errors, was denied except that the death claim verdict was reduced to $5,000 and that in favor of Stanley to $7,500. In the Greenberg case Waldor appealed to the Appellate Division from "the whole of the final judgment * * * in favor of the plaintiffs and against the defendant Samuel Waldor," serving the notice of appeal on the Greenbergs and Stanley. The administrator ad prosequendum cross-appealed against Waldor from the reduction of the verdict on the claim for wrongful death. There was no appeal by the Greenbergs from the no cause verdict on their claims against Stanley. Waldor also appealed from Stanley's judgment against him. No review was sought by Stanley of the reduction of his damage award.
The Appellate Division, by its opinion reported at 51 N.J. Super. 90, affirmed the judgment of the Greenberg plaintiffs against Waldor alone, including the death claim as reduced, but reversed that in favor of Stanley against Waldor and awarded a new trial in that suit. We granted Waldor's petition for certification, notice of which was again given to the attorneys for Stanley as well as for the Greenberg's, "to review the final judgment of the Appellate Division entered in favor of the plaintiffs Marvin W. Greenberg, et al. in the above entitled actions * * *," and Stanley's similar application to review the appellate judgment in his action against Waldor, notice of which was likewise given to all other counsel. 28 N.J. 38. No further review was sought
by the administrator with respect to the reduction of the wrongful death award.
Waldor urged numerous alleged trial errors in the Appellate Division, all but one of which were found to be without merit. Most of the rejected contentions are resubmitted here. After careful consideration we are satisfied they were properly disposed of below in parts II, III and V of the opinion and no additional comment is required.
The remaining issue before us arises out of the result reached by the Appellate Division reversing Stanley's money judgment but denying relief to Waldor with respect to the Greenberg verdicts. The court found prejudice to Waldor sufficient to infect Stanley's award by reason of the persistent efforts of the latter's counsel to place inadmissible evidence before the jury and the denial of Waldor's consequent motion for a mistrial, but determined that it did not extend to the Greenberg verdicts against Waldor. No express mention was made in the opinion of the latter's contention that the no cause result in Stanley's favor in the Greenberg suit should also be set aside on the theory that substantial justice required a new trial as to all issues and all parties. The court rather parenthetically observed that no question had been raised as to the effect of its determination "upon any right of contribution of Waldor as against Stanley in respect to the Greenberg judgments" and so the matter had not been considered and no opinion was implied with respect thereto. 51 N.J. Super. at pages 104-105. Waldor's petition for a rehearing, based primarily on the questions just mentioned, was denied, as was a petition by Stanley seeking like relief.
Both men say that the conclusion of the Appellate Division is erroneous. Waldor urges that it does not go far enough because the situation requires a reversal and new trial of the entire Greenberg case as well, both on the theory of substantial justice and because otherwise the Greenberg verdicts may preclude a claim of contribution by him against Stanley if the ordered retrial of the latter's suit results in no cause for action. Stanley contends, and here his appeal
enters the picture, that the proffered evidence was admissible and there was no prejudice or reversible trial error warranting a reversal even of his damage award against Waldor. He further says that the incident in the trial court cannot on any theory upset his exoneration by the jury from the Greenberg claims, and in this connection urges, for the first time, that Waldor, being a co-defendant, has no standing to attack that exoneration in any way. The Greenbergs, with an admitted right to recover from one of the two, if not both, and satisfied with their awards against Waldor alone, naturally seek to uphold the result in the Appellate Division. So they join in Stanley's contentions with respect to their suit and express no particular interest in the final outcome of the action between the two drivers as long as their secured position is not affected.
The problems thus posed may well be considered from three aspects. First, was the evidence sought to be introduced by Stanley admissible and, if not, did such substantial prejudice to Waldor result from the incident as to infect any of the verdicts? Second, if the latter be so, should or must such infection be limited to the Stanley-Waldor suit? Third, if it cannot be so confined, what should the effect be on the Greenbergs?
These questions must be considered primarily in the light of the situation in the case as it was when the evidence was offered, subject, of course, to anything that might have happened in the trial subsequently which could be said to have cured any error that occurred. The Greenbergs had a well-nigh perfect case of liability against some one and apparently were not greatly concerned, from the standpoint of collectability of damages awarded, with obtaining verdicts against both drivers. Their counsel adopted the common trial tactic in such situations of calling not only certain of the eye-witnesses, but both driver-defendants, as plaintiffs' witnesses, questioning each as to his version of the accident. The contest being essentially between the drivers, each sought through his own testimony to exculpate himself from blame
and cast it on his co-defendant. This is accentuated by the fact that each defendant can be cross-examined by his own counsel as well as by the attorney for his co-defendant. N.J.S. 2 A:81-11; Teel v. Byrne, 24 N.J.L. 631 (Sup. Ct. 1854). The result in such situations is that the full testimony on liability, at least from the standpoint of the personal stories of the defendants, generally comes in on a plaintiff's main case and it therefore behooves counsel for each defendant to bring out his position as strongly as possible not only by cross-examination of his own client but by similar examination of the co-defendant who may well not be called to the stand again on his own case. Each defense counsel makes objections to questions asked of a defendant, whether it be his own client or the co-defendant, by counsel for the other defendant as well as by a plaintiff's attorney, and generally injects himself into the plaintiff's case against the co-defendant and the latter's defense, even though no cross-claims between the defendants may have been filed. This is what happened here and led to the incident involved.
At the time Stanley had not been entirely successful in establishing his "cut-off" theory. It was, of course, most desirable for his counsel to present evidence to support it not only by his client's own testimony but, to be more persuasive to the jury, by the corroborative evidence of other witnesses and inferences and admissions, if possible, from Waldor's own testimony. Mrs. Zucker, Mrs. Greenberg's walking companion, had been the first witness called by plaintiffs. She testified that the Waldor car came nearer the curb than the center of the street, leaving just enough room for another car between it and the curb. She had had only a momentary glimpse of the Stanley car before it catapulted into Mrs. Greenberg, the child and the pole. She said both cars were going very fast and from the noise she heard it had seemed to her "as if the two cars had scraped."
The next witness was Harry Handelman, who had been sitting in his car parked on the east side of Elizabeth Avenue just south of the park exit, about opposite the accident
scene. His eyewitness testimony, taken as a whole, was not completely consistent and not particularly helpful to Stanley's version. He had seen the latter start up, after stopping for the light at Lehigh Avenue, "a little faster than he should have started" and proceed southerly to Stengel Avenue close to the curb "going faster than he should have." He had observed Waldor come out of the park "fast" and make his turn without slowing down, which he described as not a wide one. He said Stanley, going "fairly fast," was midway through the Stengel Avenue intersection when Waldor came out of the park. The latter's turn was completed and there was room enough for one car to pass on his right when Stanley gradually turned to the right without change of speed and went up on the sidewalk. Other than this, he did not know where Waldor's car was when Stanley deviated from his course and heard no noise of contact between the vehicles. The principal thing favorable to Stanley was of a contradictory nature brought out on cross-examination by his counsel when the witness admitted the correctness of a statement made three days after the accident in which he had said: "As this bright car [Stanley] approached Stengel Avenue a light green car [Waldor] just shot out of the park exit onto Elizabeth Avenue, turned left going south and it appeared like it might have cut off the bright car going south * * *. This car tried to avoid an accident and it swerved to the right, seemed to lose control and it went on the southwest corner sidewalk of Elizabeth Avenue and hit a baby carriage * * *."
Stanley himself was the next witness called by the Greenbergs. His testimony of what happened was, as detailed in the Appellate Division opinion, somewhat equivocal. He said he had reached or was in the Stengel Avenue intersection when he first saw Waldor coming out of the park exit "very fast" and making a left turn, but later testified on cross-examination by his own attorney that it appeared as though Waldor ...