Price, Gaulkin and Foley. The opinion of the court was delivered by Price, S.j.a.d.
In an automobile negligence case, tried before a judge and jury in the County Court, plaintiffs seek to reverse a judgment entered in favor of defendant Mullaney on his motion for dismissal at the end of plaintiffs' case. R.R. 4:42-2(b) Three cars were involved in an accident on which the action was based: one, an automobile owned by plaintiff Margaret C. Rainaud, operated by her son plaintiff William J. Rainaud, Jr., and in which plaintiff Margaret C. Rainaud, his wife, was a passenger; the others operated respectively by defendants Edith A. Thorne and Dominick J. Mullaney. Plaintiffs, Margaret C. Rainaud and William J. Rainaud, Jr., suffered serious personal injuries, and the automobile owned by plaintiff Margaret Rainaud was wrecked. The instant suit was brought to recover damages therefor. William J. Rainaud, Jr. also sued per quod. A judgment in favor of plaintiffs against defendant Thorne, entered on the verdict of the jury, is not the subject of appeal.
In assaying the propriety of the trial court's action it is to be observed that the court was obliged to accept as true all evidence supporting the position of plaintiffs and to accord to them the benefit of all inferences in their favor which might "logically and legitimately be drawn therefrom." O'Donnell v. Asplundh Tree Expert Co. , 13 N.J. 319, 328 (1953). So considered, the record reveals that on December 30, 1956 at approximately 11:30 P.M., the Rainaud automobile was being operated in a southerly direction on the western side of Route 35, a four-lane highway, each lane measuring ten feet in width. In the area of the accident a single white line marks the center of the road. The posted speed limit is 40 miles per hour. Rainaud, who had been traveling in the outside, southbound lane of the highway, intended to make a left turn across the highway and enter Frost Avenue which intersects the highway on the east. He gave an appropriate signal with the car's directional light, crossed to the inside, southbound lane, and brought his car
to a halt opposite the Frost Avenue intersection. The front wheels of his car were turned slightly to the left. Its lights were functioning and he testified that he believed he had his "brakes on." It was his intention, when cars moving on the highway in the northbound lanes had passed, to cross those lanes and enter Frost Avenue aforesaid.
The proofs further showed that the Mullaney car, then being operated in a northerly direction on the inside, eastern lane of the highway, was one of the cars the passage of which Rainaud awaited. Rainaud observed the moving Mullaney car when it was approximately 100 feet away, and instantaneously thereafter the rear of the Rainaud car was struck with "terrific" force by the Thorne automobile, traveling in the inside, southbound lane. Rainaud testified that at the moment of that impact the Mullaney car was approximately 80 feet away. The Thorne automobile struck the Rainaud car with such force as to drive the latter vehicle in a southeasterly direction into the northbound lanes of the highway and into the path of the Mullaney car, which struck the Rainaud car on its right side. Rainaud testified that as his car was propelled into the northbound lanes, the Mullaney car was "something less than 80 feet" distant (how much less he was unable to estimate); that his car had ceased moving momentarily before the Mullaney car hit it; and that at the moment of impact with the Mullaney vehicle it was at an angle across the inside, northbound lane with "a slight part of it" in the outside lane. Skid or tire marks of the Mullaney car were visible on the road surface for a distance of 24 feet south of the point of its collision with the Rainaud automobile.
The trial court held that there was no evidence from which it could legitimately be inferred that Mullaney was guilty of any negligence proximately causing the collision between his automobile and the Rainaud car; that it was clear that, without warning, the Rainaud car was propelled into the path of the Mullaney car and that as far as Mullaney was concerned the collision was unavoidable.
In challenging the propriety of that ruling, appellants contend initially that the evidence would have justified a finding that Mullaney was traveling in the "inside" or "passing" northbound lane at a time when there was no nearby car using the outside, northbound lane; that because thereof "the jury could have found that Mullaney was violating N.J.S.A. 39:4-88 at the time this accident occurred." The cited statute provides in part as follows:
"When a roadway has been divided into clearly marked lanes for traffic, drivers of vehicles shall obey the following regulations:
a. A vehicle shall normally be driven in the lane nearest the right-hand edge or curb of the roadway when that lane is available for travel, except when overtaking another vehicle or in preparation for a left turn."
Collaterally, appellants urge that, even though it might be concluded that Route 35 was not marked as described in the aforesaid statute and that consequently no statutory violation existed, "the fact that Mullaney was operating his vehicle in a normal passing lane when there were no cars in the right-hand lane would be a factor which the jury could consider in determining whether or not Mullaney was guilty of negligence."
We find no merit in the above contention. Apart from the fact that the application of the provisions of the cited statute is debatable, as Route 35 had not "been divided into clearly marked lanes for traffic" and the white center line, dividing northbound and southbound traffic, was the only marker, the basic factor is that the course of travel pursued by Mullaney had no bearing whatever on his alleged negligence. In resisting Mullaney's motion to dismiss, appellants advanced the theory that, as their car was propelled across the northbound "fast lane" only so far that "a slight part of it" was in the "slow lane," had the Mullaney automobile been ...