For reversal -- Chief Justice Weintraub, and Justices Francis, Proctor, Hall and Haneman. For affirmance -- Justices Jacobs and Schettino. The opinion of the court was delivered by Proctor, J. Jacobs and Schettino, JJ. (dissenting).
This is a negligence case arising out of a collision between an automobile operated by the defendant Norma Reimer and a panel truck operated by the plaintiff Edmund Capaldo in which the plaintiff Albert Germaine was a passenger. Germaine filed a complaint to recover for his personal injuries against Capaldo, Mrs. Reimer and her husband Howard, owner of the automobile. The Reimers, inter alia, denied negligence on their part and cross-claimed against Capaldo under the Joint Tortfeasors Contribution Law, N.J.S.A. 2A:53A-1 et seq., N.J.S.A. Capaldo thereafter filed a separate personal injury complaint against the Reimers and the actions were consolidated for trial. Pursuant to R.R. 4:43-2(b), the trial court ordered that the issue of liability be severed and tried first. The jury found that the accident was caused by the sole negligence of Mrs. Reimer, but that she was not acting as agent of her husband at the time. Following the entry of an interlocutory judgment of liability based upon that finding, the Appellate Division granted Mrs. Reimer's motion for leave to appeal pursuant to R.R. 2:2-3. It thereafter affirmed the judgment. Capaldo v. Reimer, 77 N.J. Super. 215 (App. Div. 1962). We granted Mrs. Reimer's petition for certification. 39 N.J. 135 (1963).
The collision occurred on September 9, 1958, at about 3:15 P.M. Both vehicles were proceeding in a northerly direction on Pleasant Valley Way, West Orange, which is a macadam road about 30 feet wide with a double white line down the middle and a 5-foot gravel shoulder on each side. Capaldo, who was employed by the Jaeger & Germaine Oil Company, testified that he intended to make a service call at a house on the easterly, or right-hand, side of Pleasant Valley Way; that when he was about 100 feet from the driveway of the house, proceeding at the rate of about 25 miles per hour, he gave a right-hand turn signal with the mechanical lights of the truck; and that he then slowed down and turned into the driveway. When about one-third of the truck had entered the driveway, it was struck on its right side near the rear
by the Reimer vehicle. Capaldo denied that his truck at any time veered to the left before entering the driveway.
Germaine supported Capaldo's version of the accident. However, on cross-examination it developed that Germaine's direct testimony differed substantially from his pretrial deposition. There, Germaine had testified that when Capaldo was "twenty-five or thirty feet" from the driveway, traveling "fifteen, twenty miles an hour," he "pulled, perhaps, four or five foot to the left" to make a turn into the driveway, and that in executing this maneuver Capaldo first made "a left turn signal when he began to swing to the left" and then made a right turn signal "when he began to make his turn to the right" into the driveway.
Mrs. Reimer testified that she was proceeding in the same direction and at the same rate of speed as the truck, about 100 to 200 feet to the rear of it. She was accompanied by her four children, the oldest of whom was 8 1/2 years of age. Two of the children were seated alongside Mrs. Reimer and two were in the back seat. She was driving in the center of the northbound lane; the truck was proceeding somewhat closer to the center white line. She said that the truck then slowed down and bore so far to its left that its "right tires were on the white line." Thinking that the truck's change of course and speed indicated that the driver intended to enter a driveway on the westerly, or left-hand, side of the road, she continued at her same rate of speed. She further testified that "the next thing that I knew he had turned right in front of me; and well, I immediately realized that I couldn't get out of his way so I took my foot off the gas and put it on the brake. And, of course, my concern was for my children that were on the front seat, and there was no place to go." She "extended her right arm sideways, to the right" to protect her children, and the collision followed. On cross-examination, Mrs. Reimer testified that when Capaldo "first made his right turn into the driveway," she was "approximately one hundred feet" away from him, and that she did not see "any signals of any kind at all from the vehicle."
In the trial court's charge to the jury, it omitted any reference to the meaning or application of the concept of proximate cause. At the conclusion of the charge, defense counsel objected to the omission at side bar and the trial court agreed to charge on that subject. However, the court prefaced its charge on proximate cause with the following remarks:
"I have been asked to charge you further on a subject which I thought that I had covered sufficiently without specifically using the words, proximate causation, two words in the law that I detest and consider largely meaningless."
On Mrs. Reimer's appeal to the Appellate Division, her principal argument for reversal was that when the trial court undertook to charge proximate cause at her request, its above-quoted prefatory remarks negated the effectiveness of the charge, and that:
"The natural reaction of a lay jury, upon being told that what they were about to be instructed as the law, was considered by their instructor as something he detested and something considered largely meaningless, could only be to dismiss the issue entirely from their deliberations. This is particularly true where the issue arose, as here as an apparent afterthought upon a supplemental charge."
The Appellate Division was in "complete agreement with defendant's criticism of the trial court's gratuitous observation that proximate causation are two words in the law he 'detests' and considers 'largely meaningless.'" 77 N.J. Super., at p. 220. However, the Appellate Division affirmed the judgment of the trial court, stating that in this case "the only rational conclusion to be drawn from the facts is that an accident happened as the result of the negligence of one or the other, or both of ...