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Barr v. Francks

Decided: December 4, 1961.


Goldmann, Foley and Nadell. The opinion of the court was delivered by Goldmann, S.j.a.d.


This appeal covers two trials. Plaintiff, individually and as general administratrix as well as administratrix ad prosequendum of the estate of her husband, Thomas J. Barr, deceased, appeals from (1) an order of the Law Division in the first trial of this case granting a new trial; (2) the judgment in the second trial entered on a jury verdict in favor of plaintiff against defendant Francks, and in favor of defendants Uddo & Taormina Corporation of Vineland and Edward Bailey, and against plaintiff; and (3) an order denying plaintiff's motion for a new (and third) trial.

This action arose out of an accident which happened on Route 206 early in the evening of November 20, 1958. Plaintiff was a passenger in an automobile owned and operated by her husband. Defendant Francks was the owner and driver of an automobile proceeding in the opposite direction. The Francks car suddenly swerved into the lane in which the Barrs were travelling and crashed head-on into their car. Plaintiff and her husband were severely injured and the husband died two days later.

According to Francks, as he came over a knoll he saw defendant Uddo & Taormina's tractor-trailer some 200 yards ahead. The trailer had no lights. The tractor-trailer pulled out into Francks' lane; he tried to avoid striking it by passing to its right, but upon seeing another trailer parked at the side of the road, he was forced to turn left into plaintiff's lane, hitting the Barr car head-on. The two automobiles collided at a point approximately 100 feet back of the Uddo & Taormina tractor-trailer. The

trucking company claimed that both tractor-trailers were lawfully parked by the side of the road and should have been plainly visible to Francks, and that the tractor-trailer he saw had its lights on.

Plaintiff sued Francks and Uddo & Taormina. Defendants cross-claimed against each other for contribution under the Joint Tortfeasors Act, N.J.S. 2A:53A-1 et seq. The first trial resulted in a verdict for plaintiff, suing in her several capacities, of $29,542 against both defendants. Plaintiff moved for a new trial as to damages only; defendants countered with a motion for a new trial as to all issues. The Law Division judge granted defendants' motion, stating:

"Gentlemen, I don't think there is any doubt in any counsel's mind that I personally was highly dissatisfied with the charge as I finally gave it. * * * I think there was some omission, I believe there were some words of commission in the charge which should not have been in there. * * * I am not satisfied that the jury would have returned the same verdict as it did. This may very well apply to the extent of any verdict as well as the actual findings of negligence against the two defendants, and for that reason if no motion had been made, I would have granted a new trial on my own motion, * * *. It is seldom that I have been dissatisfied with my own charge. This is one of the few cases where I not only was, but still am dissatisfied with it, and for that reason I am going to grant the motion for a new trial both as to cause of action and as to damages. * * *"

Plaintiff moved for leave to appeal the granting of a new trial. We denied the motion.

Plaintiff was then permitted to amend her complaint and add as a defendant Edward Bailey, driver of the Uddo & Taormina tractor-trailer. After the filing of amended pleadings, and the entry of a supplemental pretrial order following additional discovery proceedings, the case was tried before another judge, the judge in the first trial having died meanwhile. The jury returned a verdict in favor of plaintiff in the sum of $69,993.60 against Francks only, finding no cause of action against the corporate defendant and its driver. Plaintiff moved for a new trial because the verdict was against the weight of the evidence,

refusal of the trial judge to charge the jury as requested by plaintiff, and errors in the charge. The motion was denied.

On this appeal plaintiff claims error by the first trial court in granting a new trial and seeks restoration of the first verdict. If this relief is denied, she seeks a third trial on the ground of multiple error committed at the second trial. Francks has not appealed and, although served with ...

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