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Dinizio v. Burzynski

Decided: November 21, 1963.


Gaulkin, Lewis and Labrecque. The opinion of the court was delivered by Labrecque, J.s.c. (temporarily assigned).


The plaintiffs appeal from a judgment in favor of the defendant which followed a jury verdict of no cause for action. The suit arose out of an accident which occurred September 16, 1957 when the infant plaintiff, then six years of age, was struck by the defendant's automobile as he was crossing Park Avenue, Scotch Plains, New Jersey. He sustained a fractured skull and other injuries, for which he brought suit by his guardian ad litem , his father, who also joined individually for medical expenses and loss of services.

The accident occurred in clear weather directly in front of an elementary school. The time was 3:15 P.M. -- shortly after school had been dismissed. Park Avenue, on which the defendant was proceeding, was a two-way street, approximately 40 feet wide. There was a line of parked cars on both sides of the street. Traffic was moving in each direction in the middle lanes. The infant plaintiff attempted to cross at a point not a crosswalk. As he did so, he was struck and knocked down.

The first point raised is that the trial court erroneously refused to permit the plaintiffs' expert witness to testify as to speed and stopping distances based upon skid marks and other facts in evidence. Although the accident occurred directly in front of one of two schools located on Park Avenue within a block of each other at a time when pupils were leaving for the day, no witness testified to the movement of the defendant's vehicle prior to the moment of impact. The defendant's deposition had been taken by the plaintiffs, however, and was read to the jury in its entirety. In it he deposed that he was familiar with the location and had observed children in the vicinity as he proceeded southerly toward the scene of the mishap. He also took notice of a "Caution School Zone" sign some 250 to 300 feet before the impact. He was travelling three or four car lengths behind a preceding car at between 20 and 25 miles an hour, when he first observed the

infant plaintiff about 18 feet ahead of him and five or six feet to his left. At that time the boy was running from an eight-to ten-foot space between two northbound cars. Defendant promptly applied his brakes. While he was unable to avoid striking the plaintiff, he was practically stopped at the moment of impact. The investigating police officer testified that the car left some 27 feet of skid marks.

The only independent eyewitness, one McNulty, testified that he had been proceeding in the line of traffic going in the opposite direction. He observed the infant plaintiff run across the lower part of the school yard, across the sidewalk and into the street until he was struck. The boy ran through an opening between the witness' car and the car ahead, passing about two feet behind the car ahead. He was struck on the right side by the left front of defendant's automobile which was stopped immediately thereafter with the boy a few feet in front of it.

Following the reading of the defendant's deposition, Charles Arthur Mead, a traffic engineer, was offered as a witness for the plaintiffs. He was, and had been for the past 11 years, the Director of the Traffic and Safety Department of the New Jersey Automobile Club, an affiliate of the American Automobile Association. He was also an educational consultant for the Foundation for Safety, an organization affiliated with the New Jersey Automobile Club, and a special consultant in traffic safety for the A.A.A. headquarters in Washington, D.C. He had served as an instructor of driver instructors for the Army, Navy and Marine Corps and the Post Office Department. He had designed and taught courses in accident prevention and vehicle operation for those organizations, for the Newark Police and Fire Academy and for the deputy sheriffs of Essex County. He had taught driver education courses for teachers. He had designed and helped teach a course in basic traffic regulations and control for the Essex County Sheriff's Department.

He further testified:

"* * * We give driving tests. We run a battery of motor and sensory tests, reaction times, demonstrate stopping distances, as well as of course the rules of the road and good driving techniques.

Q. Now, Mr. Mead, are you familiar and have you been familiar with for some time with the formula and formulae for stopping distances, speeds and so forth? A. I have conducted a number of those types of demonstrations and tests myself, and there are various formula and charts for determining stopping distances on different types of pavement at varying speeds under varying conditions or weather.

Q. Now, Mr. Mead, is there a technical name for this science? A. ...

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