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Phillips v. Scrimente

Decided: February 28, 1961.

ROSA N. PHILLIPS AND SAMUEL PHILLIPS, PLAINTIFFS-APPELLANTS,
v.
SAMUEL SCRIMENTE, INDIVIDUALLY AND TRADING AS LACKAWANNA TAXI SERVICE, TERENCE MELIA, AN INFANT, BY HIS GUARDIAN AD LITEM, SARAH ELIZABETH OLEN, AND FREDERICK A. KINCH, DEFENDANTS-RESPONDENTS



Price, Gaulkin and Sullivan. The opinion of the court was delivered by Gaulkin, J.A.D.

Gaulkin

Rosa N. Phillips was a passenger in a taxicab owned by defendant Scrimente and driven by defendant Melia, when it collided with an automobile driven by defendant Kinch. She, and her husband per quod , sued for the allegedly resulting injuries. The trial court directed a verdict in favor of Kinch, and the jury returned a verdict in favor of the remaining defendants. Plaintiffs appeal.

Plaintiffs contend that it was error to direct a verdict in Kinch's favor. The accident happened when the taxi, proceeding west on Morris Avenue, Summit, turned left into Prospect Street and collided with Kinch's automobile, which was traveling north on Prospect Street. Prospect Street

forms a T intersection with Morris Avenue, the latter being the through street. There were no traffic lights at the intersection, but there was a stop sign on Prospect Street facing Kinch. The accident happened at 8 A.M., in clear weather.

Plaintiff's trial counsel (not Mr. Schnitzer) called defendant Melia as his witness but did not subpoena Kinch, and the latter did not appear at the trial nor was his testimony otherwise obtained. Mr. Schnitzer suggests that this was the cause of the ensuing debacle which swept away plaintiffs' case. Stone v. Dewarns , 7 N.J. Misc. 871 (Sup. Ct. 1929); Hoffman v. Smith , 6 N.J. Misc. 1090 (Sup. Ct. 1928). Cf. Murphy v. Terzako , 14 N.J. Super. 254 (App. Div. 1951).

Melia testified that he brought the taxi to a stop, preparatory to making the left turn, "about even with the easterly line of Prospect Street"; he had a clear view south on Prospect Street and saw Kinch's car standing still, "just close to the stop street sign," 20 to 25 feet "from the corner"; there were cars coming east on Morris Avenue which Melia "let clear." He then proceeded to make the left turn, and, when he was "halfway through the turn" he looked to his left again and saw Kinch a "few feet" from him "proceeding up" and "looking to the left" and not in Melia's direction. The impact, said Melia, took place "on the corner" of "the northbound lane of Prospect" at a point "about even with the southerly line [of Morris Avenue] if that line were extended across the intersection." The left front fender of the taxi and the left front bumper of Kinch's car came into contact.

Melia admitted that he had made the left turn too sharply; the collision was in the northbound lane of Prospect; Kinch was wholly within that lane, and moving only about 5 miles per hour; and that Kinch applied his brakes just before the impact. Nevertheless, it is our judgment that the evidence was enough to go to the jury upon the issue of Kinch's negligence. Upon the uncontradicted testimony

the taxi came to a stop on Morris Avenue in full view of Kinch. Since there were no traffic lights at the intersection, and Morris Avenue is a through street, the jury had the right to conclude that Kinch knew or should have known that the taxi had stopped for the purpose of making a left turn into Prospect Street. Kinch was on a stop street, and it was his duty under N.J.S.A. 39:4-144 not only to come to a complete stop but also to "proceed only after yielding the right of way to all traffic on the intersecting street which is so close as to constitute an immediate hazard." The jury could properly conclude that, without watching the taxi, Kinch proceeded with his head turned the other way, with the result that the cars collided in the southerly line of Morris Avenue. In short, the jury had the right upon the uncontradicted testimony to find Kinch negligent, and that his negligence was a proximate cause of the accident. The judgment in Kinch's favor is therefore reversed.

Under the circumstances of this case the reversal of the judgment as to one of the drivers would itself justify a reversal as well of the judgment in favor of the other. Greenberg v. Stanley , 30 N.J. 485, 504 (1959); Advance Piece Dye Works, Inc. v. Travelers Indem. Co. , 64 N.J. Super. 405, 416 (App. Div. 1960). However, plaintiffs do not rely upon that, but assert that the trial judge committed error which requires the reversal of the judgment in favor of Melia and Scrimente as well.

Plaintiffs contend that one of those prejudicial errors arose from the following facts. The court charged the jury (emphasis ours):

"* * * it is the traffic laws of the State of New Jersey that after entering an intersection the law requires that the left turn shall be made so as to leave the intersection to the right of the center line of the roadway being entered. Violation of any section of the traffic act is not of and by itself negligence ...


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