Price, Sullivan and Lewis. The opinion of the court was delivered by Price, S.j.a.d.
[75 NJSuper Page 414] Defendant appeals from an order of the Acting Director, Division of Motor Vehicles, suspending
his motor vehicle "driving privileges" for a period of one year. The administrative proceedings under review were initiated as the result of an accident on October 25, 1960 in which an automobile owned and operated by defendant struck and killed a pedestrian on a public street in the City of Camden.
By this appeal defendant challenges the propriety of the aforesaid action of the Acting Director on the ground that the violation forming the basis of that action was at variance with the charge set forth in the notice of revocation initiating the proceedings against him.
We desire to note, parenthetically, that in view of the recent opinion of the Supreme Court in Atkinson v. Parsekian , 37 N.J. 143 (1962), there is no doubt that the Acting Director had jurisdiction to act in the premises.
In the case at bar, on application of defendant, a hearing on the proposed revocation of his license was held by a hearing officer in the Division. Following the filing of that officer's report with the Acting Director, the latter adjudged that defendant "did violate the intent of R.S. [ N.J.S.A. ] 39:4-36" and directed the aforesaid suspension of his driver's license.
The record before us does not include a transcript of the testimony given at the hearing. Instead thereof, the hearing officer's report contains a summary only of such testimony, together with certain exhibits, including photographs and diagrams of the accident scene, reports of police officers, a written statement by defendant, and a statement by an officer outlining the information given to him by the sole eyewitness of the accident.
The accident in question occurred at 11:30 A.M. on October 25, 1960. Defendant, who had been operating his car in a southbound direction on River Road in Camden, brought the vehicle to a stop in obedience to a red signal on a traffic light at that road's intersection with East State Street. While waiting for the light to change, defendant saw decedent (who was an 86-year-old man) standing near
a telephone pole on the southeast corner of the intersection. The report recited a police officer's testimony (concerning defendant's explanation to him of the circumstances surrounding the happening of the accident) as follows: "* * * as soon as [the light] turned green [defendant] started out again and as he entered the intersection of State St., the pedestrian stepped off the curb in front of him; * * * that he attempted to stop but was unable to stop before he hit the pedestrian."
The hearing officer's report summarized the testimony of a woman motorist (the eyewitness above mentioned) as follows:
"* * * she noticed that the pedestrian was on the sidewalk and that the defendant's vehicle was approaching from the east; * * * that the pedestrian waited for the light to change and as it changed green in his favor he started to cross the street. She is not sure if the pedestrian was in the cross-walk or not. She thinks he was but she could not definitely state that he was. She said that he was in the street before being struck and that he was walking slow and he held up his left hand just before being hit as though to ward off the vehicle. * * * She said the defendant was not going fast, that he had just started out as he had been stopped for the red light. She stated that she thinks that the victim was hit by the left side of the defendant's ...