Price, Sullivan and Foley. The opinion of the court was delivered by Price, S.j.a.d.
In consolidated actions arising out of an automobile accident, Vincent Sawicki appeals from a judgment entered on a jury verdict against him in favor of plaintiffs Bialoblocki in the Superior Court, Law Division, and from a judgment of no cause for action in favor of defendant Lehigh Valley Railroad Company (herein Lehigh) in his affirmative suit against it. In both actions plaintiffs sought damages for personal injuries sustained. The accident, out of which the present litigation arose, occurred at about 9:30 P.M. on November 12, 1957, on Washington Street, Perth Amboy, when an automobile operated by Sawicki, in which plaintiffs Bialoblocki and others were passengers, struck the northeastern girder of a bridge span. No other vehicle was involved. Recovery had been sought against Lehigh on the basis of its alleged negligent placement of an improperly lighted barricade on the bridge.
In seeking reversal of the Bialoblocki judgment against him, as well as the judgment of no cause for action on his affirmative claim against Lehigh, Sawicki contends that (a) that the verdict rests upon the erroneous admission of incompetent evidence, to which Lehigh's counsel was wrongfully permitted to refer in summation; and (b) he was prejudicially affected by remarks made by Lehigh's counsel relating to the voluntary dismissal, at the inception of the trial, of actions originally instituted by Bialoblocki and Sawicki against The Middlesex Excavating Co. (The Middlesex Concrete Products & Excavating Co., herein designated "Middlesex"); and that the general conduct of Lehigh's counsel during the trial so improperly influenced the jury as to render its verdicts "inconsistent with substantial justice." Hereafter we make specific reference to the aforesaid evidence and to the allegedly harmful remarks and actions of counsel, on the basis of which appellant seeks to reverse the judgments against him.
The record reveals that at the time of the aforesaid accident Sawicki was operating his automobile in an easterly direction on Washington Street aforesaid. That street is a two-lane road and at one point passes over railroad tracks by means of a bridge 144 feet in length owned and maintained by Lehigh. The bridge itself is situated high above railroad tracks and both the eastern and western approaches to it are steeply inclined.
For a number of days prior to the aforesaid date Middlesex had been engaged in resurfacing Washington Street in the area near the eastern end of the bridge. The resurfacing had resulted in a two-inch elevation of the roadway at that end of the bridge span. Pending the adjustment of the bridge span plate to meet the new level of the street, a "saw-house type" barricade had ben placed by Lehigh at the eastern end of the bridge in the eastbound, southern lane. Two kerosene lanterns with red globes were attached to the barricade. At about 7 P.M. on the night of the accident two police officers inspected the barricade and found one of the lanterns lit, but burning dimly. The other was unlighted. The latter was lighted by one of the officers and both lanterns were adjusted so that they might function at their maximum capacity.
According to Sawicki's testimony, it was about 9:30 P.M. when his automobile approached the western end of the bridge. He testified that he was then traveling at approximately 15 miles per hour and had increased his speed to "no more than twenty-five miles" per hour as he reached the center of the bridge. A photograph of this approach, taken on November 13, 1957, shows a large sign reading "Slow Bump," attached to the southwestern girder of the bridge span. Sawicki testified that he saw a sign in that location, which, as he recalled, read: "Slow Down." He stated that he did not notice the barricade until he was within six to eight feet of it, and that he "didn't see" any lights on it. He testified that he became "scared, afraid," but did not apply his brakes. Instead, as there was no
one in the westbound lane of the road, he turned sharply to the left, intending to go around the barricade. However, he failed to complete the maneuver and crashed into the northeastern girder of the bridge span. As a result, he and two of his passengers, Sygmunt and Wanda Bialoblocki, were seriously injured.
Bialoblocki, individually and as guardian ad litem of Wanda, instituted the initial action against Sawicki and Middlesex on January 16, 1958. Sawicki filed a complaint on June 11, 1958 against Lehigh and Middlesex. The Bialoblocki complaint was amended July 2, 1958 to include Lehigh as a defendant. On August 21, 1958 the actions were consolidated for trial. Just prior to the empaneling of the jury Bialoblocki and Sawicki voluntarily dismissed their actions against Middlesex.
Following the aforesaid verdicts Sawicki moved for a new trial on several grounds. The motion was denied. On this appeal he has abandoned all of the grounds save those above mentioned. It is noted that the Bialoblockis have taken no part in this appeal. Sawicki asserts in his brief that he has "no objection to the quantum of the verdicts recovered by the Bialoblockis," and states that he concedes that "it would be unfair to them to compel a retrial on the issue of damages" but that "substantial justice does require a new trial on the issue of liability as to all parties."
Initially, we shall consider appellant's contention that the judgments against him should be set aside as resting on incompetent evidence and the wrongful use thereof by Lehigh's counsel in cross-examination and summation. The situation, which forms the basis of criticism by Sawicki's counsel, arose during Lehigh's cross-examination of a police officer called as a witness by Bialoblocki. Prior thereto, during cross-examination by Sawicki's counsel, the officer, in refutation of a statement made by Lehigh's counsel in opening, denied that he had found "seventy-five feet of skid marks" at the "scene" of the accident. Thereafter,
while under cross-examination by Lehigh's counsel, the officer, over initial objection by Sawicki's counsel, was interrogated with reference to certain photographs of the ...