Goldmann, Conford and Freund. The opinion of the court was delivered by Goldmann, S.j.a.d.
[59 NJSuper Page 67] Plaintiffs appeal from a Law Division judgment entered upon a unanimous no cause verdict in their action arising out of an automobile accident. Mrs. Kaufmann sued for personal injuries and her husband per quod.
By their amended complaint plaintiffs alleged that they were lawfully invited passengers in defendant's automobile; that he "willfully, wantonly, carelessly and recklessly" operated it so that it ran off the highway and overturned; and that he was negligent in that he operated his car at an excessive rate of speed, failed to make proper observations, disregarded the traffic laws and, generally, failed to exercise that degree of care which a reasonably prudent person would have under the circumstances. The amended answer admitted only operation and, by way of separate defenses, alleged that defendant violated no legal duty owing plaintiffs; defendant was not guilty of any negligence which was the proximate cause of the accident and injuries; plaintiff was guilty of contributory negligence and, finally, that since the accident occurred in South Carolina, the cause of action was governed by the South Carolina guest statute, South Carolina Code of Laws , § 46-801.
Plaintiffs had arranged to fly to Miami, Florida, for a vacation on the evening of Saturday, September 1, 1956. The testimony was that defendant phoned on the Monday preceding that date and suggested that the Kaufmanns accompany him and his wife to Florida in his car. He was told of the plane arrangements, but insisted plaintiffs should come along as company. The Kaufmanns then said they would go only on condition that they pay half the expenses (gasoline, oil, tolls and any necessary repairs) and share the driving. They insisted upon this over defendant's objection, until he finally agreed.
The two couples left for Florida early Saturday morning and stopped for the night at Raleigh, N.C. They continued the next day, Sunday. The accident happened about an hour and a half after lunch Sunday afternoon, near Yemasee, S.C., as defendant was driving south on a two-lane road which ran straight for some five or six miles through a wooded area. An automobile suddenly came out of a dirt road on the right, halted a moment at the margin of the highway, proceeded across it, and stopped momentarily at
the center line. Defendant tried to avoid the car by driving to the left, and then went onto the shoulder where the car overturned, coming to rest on its roof. All four occupants got out, and after a state trooper had arrived and checked the accident they drove to a garage where the right rear wheel was changed, and then continued on their way. They arrived in Miami two days later.
All four felt shaken up and somewhat nervous. Mrs. Kaufmann testified she suffered knee and hip bruises, and damage to the frame of her glasses. Afterward, she said, came the pains in the back of her head, neck, shoulders and spine, difficulty with her arms and legs, headaches and dizziness, which required medical attention over a considerable period. Mrs. Kaufmann did not see a doctor in Miami nor upon her return home on September 22. She and her husband made an appointment on October 4 for a checkup, but did not go to see their doctor until October 18, more than six weeks after the accident.
There was variant testimony regarding what happened just before the accident. Mrs. Kaufmann said they were "about 350, 400 feet, 500 feet" away when she first observed the car coming out from the side road, and that defendant was then driving at 90 miles an hour. Her husband gave the same speed, and said that the other car was "approximately 500, 550 feet" away when he first saw it. On cross-examination it appeared that the speed plaintiffs testified to was that at which defendant was traveling shortly after he passed two cars a mile or so north of the point of accident. Defendant's testimony was that he was 60 to 70 feet away when he first saw the other car at the edge of the road, and his speed was 50 to 60 miles an hour. The South Carolina speed limit on this highway was 55 miles an hour.
The proofs show that not only was the stretch of road a straight one, but there was a clear, unobstructed view ahead and little traffic. There was evidence that the other passengers in the car had on Saturday and Sunday morning on a number of occasions urged defendant to slow down. However,
the testimony also showed that the warnings were largely motivated by fear of radar traps and that defendant would be arrested for speeding, thereby delaying the trip.
Plaintiffs' first argument on appeal is that the verdict was contrary to the weight of the evidence. We see no merit in the point. Plaintiffs rely solely on defendant's excessive speed as evidence of negligence. The testimony, as detailed above, was contradictory as to just how fast he was driving at the time of the accident. Credibility was of obvious importance, not only as to the details of the accident but also as to the injuries actually suffered. The jury could have found that even though defendant was exceeding the legal speed limit, he was not, immediately prior to the accident, driving faster than a reasonably prudent person would under all the circumstances then present. It could also find that the car which came into defendant's path from the right did so with such little warning that he had no other choice but to try to avoid it by steering to the left.
We are at once confronted by the familiar rule that a jury verdict may not be set aside as against the weight of the evidence unless, giving due regard to the opportunity of the trial court and the jury to pass upon the credibility of the witnesses, it clearly and convincingly appears that the verdict was the result of mistake, partiality, prejudice or passion. R.R. 1:5-3(a). A verdict that rests upon testimony competent to sustain the inference implied in its finding is ordinarily conclusive. Hager v. Weber , 7 N.J. 201, 210 (1951). Here we may observe that the trial court denied plaintiffs' motion to set aside the no cause verdict as against the weight of the evidence and because based upon an erroneous charge. Although not under appeal, the denial of the motion is significant in the light of what was said in Hartpence v. Grouleff , 15 N.J. 545, 549 (1954).
Plaintiffs next argue that the court erred in its charge as to the applicability of the South Carolina ...