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Matthews v. Nelson

Decided: October 29, 1959.

LORETTA MATTHEWS, ADMINISTRATRIX AD PROSEQUENDUM OF THE ESTATE OF DONALD MATTHEWS, DECEASED, PLAINTIFF-RESPONDENT,
v.
EDNA NELSON AND DAVID NELSON, DEFENDANTS-APPELLANTS



Price, Sullivan and Foley. The opinion of the court was delivered by Sullivan, J.A.D.

Sullivan

Defendants appeal a judgment for $15,000 in favor of plaintiff. The suit, a death action, arose out of an intersection automobile collision. After trial the jury returned a special verdict that defendant David Nelson, the driver of one of the cars, was negligent and his negligence was a proximate cause of the accident. The jury also found that plaintiff's decedent, Donald Matthews, the driver of the other car, was not guilty of contributory negligence and awarded plaintiff as administratrix ad prosequendum the sum of $15,000.

The appeal rests on three main points. First, that the trial court should have granted defendants' motions for dismissal at the close of plaintiff's case, and again after both sides had completed the presentation of evidence. Second, that the verdict should be set aside as against the weight of the evidence and that it is the result of mistake, partiality, prejudice or passion. This ground was a basis of a motion for a new trial. Third, that certain statements made by plaintiff's counsel in his opening to the jury and also in his summation were prejudicial and that the court should have granted defendants' motions for a mistrial.

The first and second points can be considered jointly since they rest on the proposition that the evidence at the close of plaintiff's case and at the close of the entire case demonstrates that plaintiff's decedent Donald Matthews was contributorily negligent as a matter of law and that the jury could not have properly found otherwise. We do not agree. The collision took place at about 1:15 in the afternoon at the intersection of State routes 528 and 547 in Jackson Township, Ocean County. The pavement was dry. Plaintiff's decedent Matthews was driving north on Route [57 NJSuper Page 518] 547. He had a passenger sitting next to him in the front seat. The defendant David Nelson was driving east on Route 528. His mother and co-defendant was sitting next to him. At the intersection of the two highways is an overhead warning light which blinks red for traffic on Route 547 and amber for traffic on Route 528. In addition, Route 547 at the intersection is a stop street marked by a stop sign and a white line about 20 feet back from the corner. The evidence was that Matthews arrived at the intersection first, stopped his car at the white line for about 20 seconds and then proceeded slowly into the intersection intending to cross over. He was about half way across when he was struck on the left side by defendants' car. A witness described the crash as "a terrific sound"; the car driven by Matthews appeared "to be turning and twisting"; Matthews' body was "propelled through the air" and landed about 40 feet away. Another witness used these words, "I saw a car tumbling over, also saw a man's body going through the air." There was testimony that the Matthews car came to rest on its side 35 feet away from the point of impact. The Nelson car came to rest against a tree about the same distance away. All of this proof must be considered in the light of the evidence that the Matthews car was proceeding at 5 to 8 miles per hour at the time. The defendants' automobile therefore must have been traveling at a high rate of speed to cause the results just described. Indeed, one of the witnesses estimated that the Nelson car was traveling at 55 to 60 miles per hour. The argument made by defendants is that Matthews either did not look to his left or else made an ineffective observation since the defendants' automobile was approaching from that direction. That is not necessarily so, however. No one knows whether or not Matthews looked to his left. He certainly had a right to assume that vehicles on Route 528 were being operated at a reasonable speed and with due regard to the amber caution light which marked the intersection. German v. Harris , 106 N.J.L. 521 (E. & A. 1929). The passenger in the Matthews car looked

to his left when Matthews came to a stop and saw nothing coming from that direction. It was not until Matthews had started up again and the car was at or into the intersection that this witness saw the defendants' car for the first time. Under these circumstances it was for the jury to say whether or not Matthews was contributorily negligent.

The other point made by defendants, supported by timely motions for mistrial, is that plaintiff's counsel in his opening to the jury "suggested to the Court -- to the jury the figure of the award" contrary to Botta v. Brunner , 26 N.J. 82 (1958), and also "that counsel for Mrs. Matthews in his summation has stated the amount of a verdict -- stated the amount of his computations and has expressed to the jury the sum of $28,000," contrary to Botta, supra. On this appeal defendants have broadened their objections to include the contention that counsel for plaintiff, in his argument to the jury, used figures on loss of income that were not supported by the evidence.

Basically, the defendants contend that it was error for plaintiff's counsel to urge upon the jury the proposition that plaintiff's damages could be computed according to a mathematical formula and his use of actual figures suggested to the jury the amount of the verdict to be returned. In substance, counsel took the age of plaintiff's decedent at the time of his death and by use of the mortality tables, which are part of our court rules, calculated the value of a dollar of yearly income over the period of life expectancy. According to the tables such value was $9.90. Counsel then took the amount of yearly income claimed to have been lost by plaintiff as a result of her husband's death and multiplied it by figures taken from the tables. For example, counsel in his summation told this to the jury:

"Mrs. Matthews said, and that is her testimony in this case, that her husband gave her $55 a week, or thereabouts. Now, I compute that $55 a week is $2,860 a year; it is a mere matter of mathematics. $2,860 per year. So as I view it, if one were to create a fund presently today for that yearly amount which her husband gave to

her during his lifetime, $2,860, it would take that amount times $9.90, which mathematically speaking is $28,314, as I compute it."

The objection, therefore, is two-pronged. Did counsel have the right to mention a mathematical formula and figures at all, and if so, did he distort the actual figure on loss of income to a point where it constituted prejudicial error?

A review of counsel's opening and summation does not disclose any impropriety in his reference to a formula and figures. All he did was explain to the jury how the actuarial tables worked and how a self-depleting fund, adequate to produce a stated income over a specified period of time, could be calculated. An actuary could have testified to the method of computing such a ...


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