Gaulkin, Kilkenny and Herbert. The opinion of the court was delivered by Kilkenny, J.A.D.
In this personal injury negligence action, a jury in the Essex County Court, Law Division, returned a verdict in favor of the injured plaintiff, Mary Massotto, in the sum of $40,000, and in favor of her husband, Dominick Massotto, who sued per quod , in the sum of $1,250. Defendant's motion to set aside the verdict and for a new trial was denied.
Defendant appeals from the judgment based upon the verdict and urges six grounds for reversal.
Defendant contends that the trial court erred in removing the issue of contributory negligence from the case. There had been a prior trial, at which the issue of contributory negligence had been submitted to the jury and it returned a verdict of no cause for action. On appeal, the Appellate Division reversed and remanded the case for
a new trial, holding that, on the record before it, the evidence was insufficient to raise a jury question as to plaintiff's contributory negligence. This court ruled on that previous appeal that "the mere act of plaintiff, in walking in the manner described from one part to another part of the moving vehicle" did not justify the court's charge that a jury question as to her contributory negligence thereby was projected. Other points raised by the plaintiffs on that appeal were not considered. Massotto v. Public Service Coord. Transport , 58 N.J. Super. 436 (App. Div. 1959).
In removing the issue of contributory negligence from the jury's consideration in the second trial, now under review, the trial court quite properly felt bound and was bound by our previous ruling, since the testimony as to the happening was substantially the same as that given at the first trial. The gravamen of the complaint was that the female plaintiff on November 8, 1957, a clear day, about 9:30 A.M., was moving from the front of the bus to obtain a seat in the rear of the bus, when the operator negligently and suddenly brought the bus to a sharp stop, and thereby caused her to be thrown to the floor of the bus with consequential physical injury.
Mrs. Massotto testified to her movement in the bus as follows, at the first trial (58 N.J. Super. , at pp. 437-438):
"Q. Tell us what you did when you changed. A. I got off the seat and I was moving toward the back of the bus. All of a sudden * * *
Q. Just a minute. How were you moving toward the back of the bus? A. Facing the back of the bus.
Q. Were you walking? A. I was walking, yes.
Q. What is this? Down the aisle? A. Down the aisle.
Q. Between the cross seats? A. That's right.
Q. Were you holding onto anything? A. Yes. I was holding as I was going up, as I was ready to grab --
Q. Just a minute. You were holding onto what? A. To the seats.
Q. Just before anything unusual occurred, what were you doing as far as your hands are concerned? A. I was trying to grab the strap at the end of the bus."
Her testimony at the second trial was substantially the same, as the following passage demonstrates:
"Q. All right. And tell us what you did when you got up from your side seat? A. Well, as I got up I started holding on from one seat to the other.
Q. Holding on to what? A. To the straps of the seat and the bars, whatever they have on the bus.
Q. The bars, you say? A. Yes.
Q. I see. And how far back did you get before anything unusual happened? A. Well, I got as far as the back cross seats.
Q. Now, which seats are those when you say back cross seats? A. That's near the rear door of the bus.
Q. I see. And what were you doing? A. I was just about getting a hold of the strap."
The defendant argues that the plaintiff testified at the second trial that the bus was "going pretty fast," when she made her movement from the front to the rear of the bus, and that this additional item of testimony had not been given by her at the first trial. Her actual testimony at the second trial was as follows:
"Q. Now, do you have any idea how fast the bus was going before it made the sudden stop? A. No, I don't know, but pretty fast."
This half-negative, half-indefinite characterization of the speed of the bus must be read in the light of other, more definite testimony in the record. On cross-examination, Mrs. Massotto testified that when the bus driver "doesn't stop for any people they go real fast down that hill," but if he does stop for people "then he goes slow." Actually, as the bus driver testified, the bus had been stopped at Sunset Avenue to "pick up a person or two" and this accident happened somewhere between Sunset Avenue and Alexander Street, the next intersecting street, while the passengers who had been picked up at Sunset Avenue were in the process of walking to their seats.
It is clear that plaintiff's aforesaid testimony at the second trial as to the speed of the bus did not constitute a material or substantial difference from her testimony at
the first, so as to make inapplicable the previous ruling of this court that her conduct in moving from the front of the bus to the rear of the bus did not constitute sufficient evidence of contributory negligence to warrant submission of that issue to the jury.
Under the circumstances, no error was committed by the trial judge in removing the issue of contributory negligence from the case.
Defendant expresses concern that the Massotto ruling represents a departure from the principle that a passenger's contributory negligence is normally a question of fact for the jury. Burr v. Pennsylvania R.R. Co. , 64 N.J.L. 30 (Sup. Ct. 1899); Rapp v. Public Service Coord. Transport , 9 N.J. 11 (1952); 52 A.L.R. 2 d, subsec. 3, p. 585, Anno. No such departure from the general rule was intended. At the same time, when the evidence discloses that the plaintiff was not guilty of any negligence which contributed to the happening, it is improper and unwarranted to submit the issue of contributory negligence ...