Conford, Freund and Haneman. The opinion of the court was delivered by Freund, J.A.D.
[59 NJSuper Page 333] Plaintiffs Eldon V. Tabor and Edward J. Callahan, rear-seat passengers in a two-door Oldsmobile convertible being driven by the defendant William O'Grady, instituted this action in the Union County Court to recover damages for personal injuries sustained when the automobile collided with an iron telephone pole on Broad Street, Newark,
on April 27, 1957. The collision was the end result of the reckless and grossly negligent conduct of the operator in driving, at 3:30 in the morning, from Elizabeth to Newark at speeds in excess of 70 miles per hour. O'Grady's father, the owner of the vehicle, was also named as a party defendant, but the case against him was dismissed at the conclusion of the proofs. The principal issues tried and submitted to the jury were the negligence of O'Grady in his operation of the automobile and the asserted contributory negligence of the plaintiffs, who were invitees, either in failing to control or restrain the driver or in failing to remove themselves from the automobile when the opportunity presented itself. The jury resolved these issues in favor of plaintiffs, awarding damages of $25,000 to Tabor and $424 to Callahan.
Defendant moved to set the verdicts aside on two grounds: (1) plaintiffs, and particularly Tabor, had been guilty of contributory negligence as a matter of law; and (2) the summation of plaintiffs' counsel to the jury was improper, prejudicial and inflammatory. The trial judge ruled that there was evidence that Tabor had been intoxicated, that the jury could logically have concluded that he lacked the capacity to appreciate the extent of the peril to him, and that therefore he was not necessarily contributorily negligent in remaining in the vehicle. The court did not directly pass upon the propriety of the summation, reasoning that defendant's negligence was clear, the verdicts were not excessive and, as a result, "those emotional remarks had no effect upon the jury * * *." On this appeal, defendant challenges both of these rulings.
Plaintiff Tabor, 27 years of age on the date of the accident, left his home in Linden, N.J., at 6:00 P.M. on Friday evening, April 26, 1957. He went to a White Castle restaurant in Linden and "stayed there for a while." He then went to a White Castle in Elizabeth, his friend Bernie driving him. At about 11:00 P.M., Tabor went to the Silver Moon bar in Elizabeth and there consumed a pizza pie and "three or four highballs," consisting of whisky. He left at about
midnight and had nothing further to drink during the evening. Tabor then returned to the Elizabeth White Castle, where he met the plaintiff Callahan, the defendant O'Grady, and O'Grady's friend, James W. Hoey.
Prior to arriving at the White Castle on his motorcycle, Callahan had had four to seven glasses of beer. As for Hoey and the 19-year-old O'Grady, they had gone for a ride with two girls in O'Grady's father's car, had taken the girls home, and then proceeded to the White Castle located at the corner of Elmora and Westfield Avenues. Neither had imbibed any alcoholic beverages.
These four young men remained at the White Castle until after 3:00 A.M., talking, drinking coffee, and reading newspapers. Callahan went to drive home but while astride his motorcycle, it fell because the kickstand was not down. The others did not think Callahan "was in shape to drive the motorcycle home," and it was taken to a nearby parking lot and left there for the night. When O'Grady offered to drive Tabor and Callahan home, all four entered O'Grady's car. Hoey sat next to the driver and plaintiffs, as noted, sat in the rear.
O'Grady did not testify, and it is uncontroverted that he drove the car at an excessive rate of speed, estimated at 70 to 75 miles per hour. Hoey remembered that, at times, the accelerator was depressed "all the way." O'Grady ignored several red traffic lights and was going too fast to be able to stop for another. After speeding recklessly through Elizabeth, O'Grady came to the beginning of Broad Street, Newark, a 25-mile-per-hour zone. In making a left turn onto that street, there was some difficulty with a hub-cap. O'Grady stopped the car next to the curb and got out. When he returned, the frantic ride continued down Broad Street.
At least twice during this 10-minute, 3 1/2-mile ride, Hoey told O'Grady to "slow down." The convertible top being down, he was required to speak in a "pretty loud" tone of voice. Hoey testified he spoke loud enough for the two men in the rear to hear him. O'Grady merely replied, "Are you
chicken?" to which Hoey answered, "Yes * * * Slow down." Tabor and Callahan did not similarly protest. At the trial, Tabor explained, "Because I heard Hoey name it to him and I thought if it was saying anything more it would make it worse."
O'Grady eventually crashed into a telephone pole on Broad Street, resulting in the injuries for which Tabor and Callahan brought this action. Tabor was taken to the Martland Medical Center. A hospital record, admitted into evidence without objection, concluded with a finding of a physician to this effect: "Acute ...