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Kopec v. Kakowski

Decided: February 20, 1961.

DANIEL J. KOPEC, PLAINTIFF-APPELLANT,
v.
THEODORE S. KAKOWSKI, DEFENDANT-RESPONDENT



For reversal and remandment -- Chief Justice Weintraub, and Justices Jacobs, Francis, Schettino and Haneman. For affirmance -- Justices Proctor and Hall. The opinion of the court was delivered by Haneman, J. Proctor, J. (dissenting).

Haneman

At the close of all evidence defendant moved for judgment upon the ground that plaintiff was guilty of contributory negligence as a matter of law. The court reserved decision and submitted the case to the jury, which returned a verdict for plaintiff in the sum of $10,000. Some days thereafter the court granted defendant's motion. R.R. 4:51-2. On appeal, the judgment was affirmed by the Appellate Division and we granted certification, 33 N.J. 388 (1960).

At the outset we must recognize that a motion for judgment made at the close of the trial should be granted where "the judge, by the application of the reasoning processes of the mind to the evidence adduced in the case, may properly conclude that fair-minded men cannot honestly differ as to the conclusions to be drawn from the proofs." Franklin Discount Co. v. Ford, 27 N.J. 473, 487 (1958). The trial court, in considering such a motion, cannot weigh the evidence but must accept as true all evidence which supports the view of the party against whom the motion is made and must give him the benefit of all legitimate inferences which are to be drawn therefrom in his favor. Melone v. Jersey

Central Power and Light Co., 18 N.J. 163, 170 (1955). We shall proceed to assay the proofs, guided by these cardinal principles.

On September 6, 1957 plaintiff, as on a number of occasions theretofore, was in the Silver Moon Diner located on the easterly side of Route 130 approximately midway between Woodland and Marlton Avenues, Pennsauken. The weather was clear, warm and dry. At 10:30 that evening he left the diner bound for the Marlton Pike, which is situated to the northwest of the intersection of Woodland Avenue and Route 130. Woodland Avenue terminates at the westerly line of Route 130, forming a "T" intersection. In this general vicinity Route 130 is a four-lane highway with a medial strip separating the north and south bound lanes. For some distance north of the Woodland Avenue intersection, however, the south bound shoulder is paved, thus constituting, in effect, a three-lane highway. This latter lane bears right to an overpass located some distance south of the Woodland Avenue intersection for access to Admiral Wilson Boulevard. The south bound lane adjacent to the medial strip is 13 feet wide; the next lane is 10 feet wide, and the paved shoulder is approximately 12 feet wide. The section is well lighted with overhead lights on either side of Route 130, spaced at intervals of approximately 135 feet. At the junction of Woodland Avenue and Route 130 there are no marked crosswalks. This portion of the highway is a 45 mile per hour zone.

Plaintiff proceeded, as was his prior custom, southwardly upon a concrete sidewalk and dirt pathway on the easterly side of Route 130 until he arrived at a point directly across from Woodland Avenue, where he stopped, waiting for north bound traffic to clear. Having traversed the north bound lane he stood on the medial divider for a period of time estimated by him as between some seconds and "a few minutes," observing the south bound traffic to his right. As he was stepping off the strip he saw two cars proceeding in tandem southwardly in the lane adjoining the divider strip. Plaintiff

testified that immediately prior to his attempted crossing of the southerly lanes he estimated that these two cars were approximately 30 to 40 yards away, traveling at a speed of between 50 and 55 miles per hour. However, a photographic exhibit upon which plaintiff marked the locations of the cars and himself at the time of making this observation demonstrates the distance to be approximately 100 yards. He proceeded to cross the southerly lanes at a pace faster than his normal walking gait, looking forward and to the right. He succeeded in safely negotiating the lane closest to the divider strip, the next succeding lane to the west, a total of some 23 feet, and some 2 to 7 feet of the paved shoulder, when he saw defendant, who was operating the rear-most of the two cars, suddenly veer to the right onto the paved shoulder, passing the lead car on that side. Plaintiff attempted to jump from this lane to the curb but was struck with the right front fender of defendant's car. Defendant brought his car to a stop some 60 yards beyond the point at which plaintiff's body was found.

Plaintiff suffered a severance of the urethra; a comminuted fracture of the hip; a broken right leg, close to the ankle, which has resulted in a shortening of his leg. He had severe headaches and scars over his eyes, nose and forehead. The headaches have occasionally recurred. He was in a hospital for about seven weeks and remained in bed for about three weeks after returning to his home from the hospital. He thereafter used crutches for some two or three months and a cane for some three weeks. His leg and abdomen still pain him on occasion. His doctor bills amounted to $1,700 and his loss of wages to $6,500.

We cannot say as a matter of law that plaintiff was guilty of contributory negligence. In resolving the question of plaintiff's contributory negligence as a matter of law we must consider the factual setting as revealed by the testimony, including (1) his familiarity with the highway; (2) the observations made by him before venturing across the south bound lane and during his crossing thereof;

(3) the distance, at the time of his entrance upon the highway, between that point and defendant's car; (4) the fact that defendant was operating the rear-most of two cars traveling in tandem in the lane immediately adjacent to the medial strip; (5) the speed at which the cars were estimated to be traveling in a 45 mile per hour zone; (6) the distance of the highway traversed by plaintiff before the impact; (7) the sudden veering of defendant to the right across the second lane into the third lane, with the added acceleration of speed necessary to pass the lead car on the right. Fairminded men of ordinary prudence might well differ under the proofs adduced as to whether plaintiff acted as an ordinarily ...


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