Goldmann, Conford and Freund. The opinion of the court was delivered by Freund, J.A.D. Conford, J.A.D. (dissenting).
[60 NJSuper Page 438] This is an automobile collision case, tried in the Law Division without a jury, in which each of the parties charged the other, at various points in the pleadings, with either sole or contributory negligence. The trial judge found in favor of the plaintiff Jack Greenfield, and proceeded to enter judgment on the complaint against the defendant Robert Dusseault in the sum of $2,758, and to dismiss his counterclaim. Defendant appeals, principally contending that the weight of the evidence established plaintiff's
contributory negligence and that recovery is barred on that ground as a matter of law.
At about 4:00 P.M. on December 27, 1957 plaintiff was driving in a westerly direction on Route 46 in Caldwell. This is a four-lane highway, divided by a 12-foot wide center island, which in turn is broken by openings at various points to permit turning around. The two westbound lanes have a combined width of 20 feet. Plaintiff was driving his children home from an ice skating rink, but was first "looking for a place that made fireplace materials." He stopped for directions at a gasoline station, which was on the north side of Route 46, and left his car on the shoulder of the highway, facing westward. Plaintiff was told he had to turn his car around and proceed in an easterly direction on the highway. There was an opening in the center island about 10 feet to the west of the gasoline station; to reach it, plaintiff was required to drive in a southwesterly direction across the westbound lanes. He turned the car in this direction, on the shoulder at a 45-degree angle to the highway, and waited with the motor running until the traffic cleared.
Plaintiff made observation of the roadway by looking out the window, over his left shoulder. The traffic was "rather heavy" and plaintiff was "looking to make sure" whether he could "get out safely or not." He waited "about two or three minutes" and "didn't move until * * * there was an empty space." Plaintiff saw a car coming, but it was "two to three blocks away" and "didn't seem to be going fast." Plaintiff estimated it was about 150 yards away. He put on his directional signal and pulled into the highway at about 10 to 15 miles per hour. When the car had traveled about 25 feet across the westbound lanes and partly into the cut in the island, the left rear was struck by the left front of the defendant's car. The impact caused plaintiff to be thrown out of his car and into the opening.
Defendant had also been at the skating rink, taking photographs for a newspaper of a local "Girl of the Month"
whom he was driving home. He was proceeding westerly in the left, passing lane of Route 46, allegedly at a speed no greater than 45 miles per hour. Immediately prior to the impact, there were no cars on his right. He claimed to have seen plaintiff's car standing on the shoulder when he was 200 yards away. Defendant testified that when he was but two or three car-lengths away, plaintiff's car "pulled in front," requiring him to slam on his brakes and swerve to the right; but a version of the accident predicated on a sudden movement of plaintiff's car when defendant was only a few yards away was rejected by the fact-finder, and we do not consider it further.
A police officer testified that he took a statement from the defendant at the scene, in which the defendant said he had been blinded by the sun and had not seen plaintiff's car pulling out of the station. Defendant denied having given the latter portion of this statement. The officer said he had observed debris resulting from the collision in the middle of the westbound lanes.
At the conclusion of the proofs, the trial judge said he was satisfied that plaintiff had made careful observations while in a standing position, had used his directional signal to indicate an intention to turn, and had moved onto the road at an opportune time. He found that the front of plaintiff's car had entered the cut in the island at the time of the collision.
On the issue of primary negligence, the court was justified in finding against the defendant on the evidence presented. Defendant admitted he had been blinded by the sun and had been driving in a lane ordinarily reserved for passing. His high speed can be inferred from the force with which he smashed into the rear of plaintiff's car. The police officer testified he found plaintiff's car "over on the shoulder of the eastbound lane," which meant that it had been jolted through the 12-foot center island opening and across and free of the two eastbound lanes -- a trajection of
"approximately 40, 45 feet." Although the impact was a severe one and defendant said he had applied his brakes before the collision, his car could not be stopped until it was "50 to 100 feet" past the point of impact. Moreover, defendant's youthful passenger was not brought forward to corroborate his explanation that the accident had been caused by plaintiff's "shooting out of the shoulder." There was ample proof of defendant's ...