For reversal -- Justices Proctor, Hall, Schettino and Haneman. For affirmance -- Chief Justice Weintraub, and Justices Jacobs and Francis. The opinion of the court was delivered by Schettino, J. Haneman, J. (concurring). Weintraub, C.J., Jacobs, J. and Francis, J. (dissenting).
[38 NJ Page 438] This is a Death By Wrongful Act suit (N.J.S. 2A:31-1 et seq.) in which plaintiff sought damages for the death of his eight-year-old boy. It was tried before a jury which returned a unanimous verdict in favor of defendants. When the trial court subsequently denied plaintiff's motion for a new trial, an appeal was taken. The trial court's denial was reversed by the Appellate Division and a new trial
ordered. The Appellate Division stated that it was satisfied that the verdict "was the product of mistake or ignorance and that it was contrary to the weight of the evidence." Defendants' application for certification was granted by this court. 37 N.J. 89 (1962).
Defendants contend that the Appellate Division (a) did not apply the correct test of appellate review of a trial court's refusal to order a new trial after a jury verdict; (b) erred in its analysis of the testimony; and (c) thus arrived at a wrong conclusion that the verdict was against the weight of the evidence and was the product of mistake or ignorance.
The truck-pedestrian accident causing the death took place on June 13, 1958 at about 3 P.M. at the intersection of State and Washington Streets, Perth Amboy, in or close to the crosswalk running between the southeast and northeast corners. The streets intersect at right angles with centerlines running east and west on Washington Street and north and south on State Street. Both streets are 39 feet 8 inches wide. The crosswalks connecting the corners are lined, the inside crosswalk lines painted about six inches in from each corner and the parallel lines six feet distant. Traffic at the intersection is controlled by one light which is suspended over the intersection from a pole located at the northeast corner.
Immediately before the accident, the witnesses and parties involved in this tragedy were located as follows. The boy, Francis, was on the southeast corner waiting for a red light to change to green so that he could go north on State Street. Mr. Sobchinsky, the defendant driver of defendant Guzior's truck, was at the northwest corner facing south on State Street, waiting for the same red signal to change to green whereupon he intended to go forward and make a left turn into Washington Street. His truck was 25 feet, four inches long and about 13 feet wide, with sides extending six to eight inches over the chassis. Mrs. Duchak, a school crossing guard, was stationed on the same northwest corner to Mr. Sobchinsky's right. Mr. McSpiritt, another witness, had been driving west on Washington Street and shortly before
the moment of the accident was stopped some six feet from the most easterly crosswalk line of the southeast to northeast crosswalk and two feet to the north of the Washington Street centerline. To his right was a parked car. Mr. Fricker, still another witness, was in the entrance to his home on Washington Street located some 45 feet east of the southeast corner of the intersection.
Mrs. Duchak, called by plaintiff, testified that it was raining lightly and the amount of traffic at the intersection was normal, that the boy was walking north on the east side of State Street and stopped to wait a change in the traffic signal when he reached the intersection, that when the light changed to green, she signaled him to cross the street and she saw him walk within the pedestrian crosswalk halfway across Washington Street before she turned her attention to other school children coming from another direction. On several occasions during direct and cross examination, Mrs. Duchak reasserted that she saw the boy go halfway across Washington Street.
Mrs. Duchak further testified that when she first saw defendants' truck, it was standing still, waiting for the signal light to change, that it did not move until the light changed to green and that when the truck began its left turn, it was moving very slowly. She said that from the position in which she was stationed, defendants' truck did not bar her view of the boy so that she was able to see the youngster reach a point halfway across Washington Street. Mrs. Duchak conceded that, in the process of turning, the truck would have blocked her view of the boy if it had started up before the boy had completely crossed the southern half of the Washington Street crosswalk.
Mr. Fricker, also called by plaintiff, stated that, when he first saw the decedent, the boy was on the left-hand side of the truck not quite halfway across the Washington Street crosswalk and that the boy was facing south. He saw the front part of the body of the truck behind the driver's cab come into contact with the boy and at that moment, the front
part of the truck was into Washington Street. He then jumped up, shouted to Sobchinsky to stop, and saw the truck stop immediately. After the accident, he saw the decedent lying south of the center line of Washington Street. Under repeated examination, he insisted that when he first saw the boy, the boy was facing south. In summation, plaintiff's counsel referred to him as "an honest witness." The Appellate Division characterized Fricker's testimony as "vague and confusing."
Mr. McSpiritt, testifying for plaintiff, stated that when he first saw the decedent, the boy was near the southerly curb of Washington Street at the southeast corner, but that he did not keep a constant watch on the youngster from the time the boy left the southerly curb of Washington Street up to the point of the accident. Mr. McSpiritt was unsure whether the decedent, while walking, maintained a steady pace, slowed down or speeded up. He did not see the boy turn his head and look to the south but did see him look to the east (to the boy's right). He said that the first time that he noticed the truck was when the truck was in the process of making a left-hand turn, and that the speed of the truck was possibly one to two miles an hour and clearly less than five miles an hour. Mr. McSpiritt stated that the initial point of contact between the decedent and the truck was on the left side of the truck at the point where the front fender joins the running board and that the decedent was more than one-third of the way across the street at that time.
A lieutenant detective of the Perth Amboy Police Department, called by plaintiff, said that he arrived at the scene of the accident at about 3:10 P.M. and interrogated Sobchinsky. When asked what Mr. Sobchinsky had told him, the police officer said:
"He stated to me that he had been traveling south on State Street, in answer to my question as to the direction he was traveling prior to the accident. He said he had been traveling south on State Street, and that on the green light he made a turn east into Washington Street; that as he entered Washington Street, someone hollered,
'Stop!' He immediately applied the brakes and someone hollered, 'Back up. There's a child under the wheels.' He stated that he then put the truck in reverse and backed up two feet. He then also stated to me that he did not see the boy he hit until after the accident when he viewed him under the truck."
The policeman gave the above referred to dimensions of the truck and, additionally, described the truck as having two front wheels and a pair of dual rear wheels. He said that when he arrived at the scene, the left rear wheels of the truck were about two feet south of the center line of Washington Street and that the right rear corner of the truck was about five feet from the most easterly pedestrian crosswalk line on Washington Street. He also saw nine feet two inches of skid marks on the pavement beginning at a point just east of the crosswalk and leading to a point approximately two feet to the east of the left rear dual wheels.
His examination of the truck revealed no evidence of any contact between the decedent and the front of the truck, but he did notice an indication of such contact at a point approximately six feet ahead of the left rear wheels on the underside of the truck chassis.
Defendant Sobchinsky testified that he was on his way to make a delivery and that he was traveling south on State Street. When he arrived at the intersection of State and Washington Streets, he stopped for a red light. He saw two cars facing north on State Street which had also stopped for the same light, and when the light changed to green, defendant started forward for a distance and then stopped to permit the two north bound cars to go by. He then made a left turn at a speed of two to four miles per hour and was proceeding to go straight when somebody yelled "Stop, stop." He stopped immediately and the man yelled "Back up." The defendant backed up a few feet, got out of the truck and saw the boy under the rear left wheels.
Because of its importance, we quote at length Mr. Sobchinsky's testimony on cross-examination concerning the observations he claimed he made.
"Q. You never saw Francis Kulbacki before you got out of the truck after you had stopped? A. No, sir.
Q. * * * as you made the left-hand turn onto Washington Street was there anything to obstruct your vision of the area of the sidewalk where the boy was crossing? A. No, sir, I don't believe there was.
Q. Did you look in that direction at all at any time while you made the turn? A. Yes, sir, I had to, to see if --
Q. Did you look, sir? A. Yes, sir.
Q. And you did not see the child? A. No, sir, I didn't.
Q. Where in relation to the southeast corner was your truck when you made your first observation of that corner? In other words, where were you in relation to the intersection and the curb at that corner? A. I was stopped at the light.
Q. At the point before you made the turn? A. Behind the crosswalk, sir.
Q. And while you were in that position did you look at the crosswalk? A. Yes, sir.
Q. Did you then move after you looked, sir? A. I moved after the light changed.
Q. After you started moving did you make any other observation of that area, the pedestrian crosswalk? A. No, sir.
Q. So after making the first observation you made no further one? A. As I was making the turn, yes, sir, I did.
Q. You made another observation? A. Well, I would have to to make the turn.
Q. Well, did you? A. Yes.
Q. And then you started moving? A. Yes, sir.
Q. Now, after you started to move did you make any observation? A. I stopped for the traffic, and then I checked to see if there were any cars coming up, and then I made my turn.
Q. So, in other words, you made these two observations as you described while you were sitting there waiting for traffic to proceed past you on State Street, is that correct? A. Yes, sir.
Q. And thereafter you made no further observation after you started moving? A. No, sir."
In its charge, the court suggested to the jury that it first take up the problem of the defendant's negligence so that if it found Richard Sobchinsky not negligent, it need go no further. The jury retired at 3 P.M. to deliberate and returned at 4 P.M. with this question: "In the event that either party is not negligent, can the ...