Goldmann, Freund and Kilkenny. The opinion of the court was delivered by Freund, J.A.D.
This is a negligence action arising out of a collision between an automobile, owned and operated by defendant Francis Cresson, and a bus owned by defendant Public Service Coordinated Transport and operated by Joseph Mucci. The plaintiffs consist of four women who were passengers in the Cresson automobile, and the husbands of two of the women also sue per quod. After a jury trial in the Law Division, Camden County, the jury rendered verdicts totaling $42,000 in favor of the plaintiffs and against the defendant Cresson. The jury found no cause of action against the defendants Public Service and Mucci. The latter judgment forms the basis for the present appeal, and reversible error is claimed in certain portions of the trial judge's charge to the jury and the denial of a new trial.
The facts as gathered from the testimony are as follows: On January 14, 1958 at about 6:25 A.M., the defendant Cresson, accompanied by the plaintiff women, was driving his automobile in a drizzling rain in a northerly direction
along the Black Horse Pike, a three-lane concrete highway, north of Clementon Avenue, at Blenheim, N.J. The collision occurred when the bus, which was preceding the Cresson vehicle, pulled off the most easterly concrete lane and partially onto a black-top shoulder abutting the concrete highway, and either stopped or slowed down to pick up a passenger. Cresson drove his automobile into the rear of the bus. There was testimony that the rear of the bus was projecting into the most easterly concrete lane from one to six feet.
It was alleged by the plaintiffs that the negligence on the part of Public Service and its operator Mucci consisted of failing to display proper warning lights on the rear of the bus, suddenly stopping the vehicle on the highway without warning, and failing to pull the bus completely onto the shoulder before coming to a stop.
Plaintiffs contend that the trial judge committed reversible error in instructing the jury that the operator of the bus was under no duty under the law of this State to drive the bus off the concrete pavement and onto the shoulder of the highway for the purpose of taking on a passenger, and in refusing to charge the jury as to sections of the traffic act, which read as follows:
"39:4-65 Letting off or taking on persons
No operator of a vehicle shall stop the vehicle on the highway for the purpose of letting off or taking on a person, other than at the curb or side of the road or highway, or knowingly permit a person to alight from or enter upon the vehicle while it is in motion."
"39:4-67 Obstructing passage of other vehicles or street cars prohibited; clearance of intersections
No vehicle or street car shall be permitted by the owner or driver thereof to so occupy a street as to interfere with or interrupt the passage of other street cars or vehicles, nor shall the driver of a vehicle or street car drive such vehicle or street car into an intersection if preceding traffic prevents immediate clearance of the intersection."
They claim that had the instructions included the foregoing sections, the jury could have found ...