Price, Gaulkin and Sullivan. The opinion of the court was delivered by Price, S.j.a.d.
Plaintiff, a passenger in a motor vehicle of one George DiLallo, seeks the reversal of a judgment entered in favor of defendant, the operator of an automobile which struck the rear of the car in which plaintiff was riding. The judgment was entered in the Superior Court, Law Division, on a jury verdict of no cause for action. Plaintiff had sought damages for injuries allegedly suffered as the result of the aforesaid collision.
The principal question raised by the appeal is the propriety of the trial court's denial of plaintiff's motion for a peremptory instruction to the jury that the collision was due to defendant's negligence. The motion was made following the presentation of all of the evidence. The trial court reserved decision pursuant to R.R. 4:51-2(a) and, following the jury's aforesaid verdict of no cause for action, entered an order denying that motion as well as plaintiff's further motion to set aside the verdict and grant him a new trial either on "all issues or limited to the issue of damages." R.R. 4:61-1(a). Neither at trial nor here was any contention made by defendant that plaintiff was guilty of contributory negligence and the trial judge in his charge specifically excluded such defense from the jury's consideration.
To assess the propriety of the trial court's action denying plaintiff's aforesaid motion for a peremptory instruction on the issue of negligence, we turn to a consideration of the proofs revealed by the record before us. The accident occurred at about 8:00 A.M. on a clear day. Plaintiff was riding in the rear seat of the DiLallo automobile. DiLallo had stopped his car in congested traffic on a level, two-lane public highway and kept his foot on the brake as he awaited a chance to proceed. The surface of the road was dry. Six feet ahead of the DiLallo car another automobile had also halted in the line of traffic. DiLallo's car had been stationary for "eight" or "ten" seconds when defendant's automobile, proceeding in the same direction, struck the rear of his vehicle with such force as to propel it forward and against the car ahead of him. The front and rear of the DiLallo car were damaged as well as the front of defendant's automobile. Plaintiff was thrown to the floor of the DiLallo car by the impact.
Plaintiff testified that while the DiLallo car was "stopped for traffic" he heard the "honking of a horn." Looking out of the rear window of the automobile he observed defendant's approaching car "ten or fifteen feet away." He testified that defendant was looking to her left, not observing "where she was going" and, while her eyes were still averted, the collision occurred.
Defendant admitted that the DiLallo automobile was stationary when her car struck it in the rear. She testified that prior to the accident she was proceeding "ten to twenty miles an hour * * * approximately two car lengths" behind the DiLallo car; that while so moving she "looked" to her "left" and sounded her car horn to attract the attention of a friend she saw alighting from an automobile along the highway and belatedly failed to note that the DiLallo car had stopped. She graphically described the accident as follows:
"* * * [J]ust before the accident took place, I looked to my left at the street that comes on to Passaic Street, and at that time
I noticed a car and a girl getting out of it that I work with. I blew my horn at this particular girl. She did not see me, and all of a sudden I looked back and realized that I was right up on what turned out to be Mr. DiLallo's car. I applied my brakes. At the time that I applied my brakes, I did not have enough distance to stop without hitting his car."
The basis for the trial court's denial of plaintiff's motion was expressed by it in part as follows:
"I feel * * * that there was a question of liability to go to the jury, a question of negligence.
The question of how long the DiLallo car was stopped at the time that the defendant's car ran into it was a material issue on which there was disputed proof, because if the DiLallo car had stopped so suddenly that the defendant's looking away for one second, as she testified, would have caused her to run into the DiLallo car, then the jury would be -- was ...