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Cresse v. Parsekian

Decided: December 20, 1963.

WADSWORTH CRESSE, JR., APPELLANT,
v.
NED J. PARSEKIAN, DIRECTOR OF THE DIVISION OF MOTOR VEHICLES IN THE DEPARTMENT OF LAW AND PUBLIC SAFETY OF THE STATE OF NEW JERSEY, RESPONDENT



Gaulkin, Lewis and Labrecque. The opinion of the court was delivered by Gaulkin, S.j.a.d.

Gaulkin

After our previous decision in this case, reported in 75 N.J. Super. 405 (App. Div. 1962), the Director notified Cresse that he proposed to revoke Cresse's license because he had entered Tanyard Road from Salina Road, a stop street, without yielding the right of way to traffic on Tanyard Road "which is so close as to constitute an immediate hazard," in violation of N.J.S.A. 39:4-144, as a result of which there was an accident in which Salvatore Villari, a passenger in a car driven by Charles P. Bailey, was killed. Following a hearing, the hearer found "the charge has been substantiated," and recommended a one-year suspension of Cresse's driving privileges. The Director came to the same conclusion, in an opinion in which he departed somewhat from the hearer's findings, and Cresse appeals.

Cresse contends that the order "should be reversed because it is not supported by substantial evidence." He argues:

"A reading of the Director's Memorandum Decision, we urge, should indicate to the Court that the Director did not consider the

record as a whole in arriving at his conclusions. This reading indicates, we think, that the Director sifted the record and screened from it all evidence -- of which there was much -- which tended to exonerate Cresse and that the Director retained and relied upon a trace of testimony here and a suggestion there, all lifted out of context, and amounting in toto to less than scintilla. It seems that the Director was determined to arrive at a finding of guilt and gave the record a strained interpretation in order to do so. The record if considered in its entirety, called for a different result. * * *."

It will not be necessary to deal with every point made by Cresse in his careful dissection of the Director's opinion. It will suffice for the purposes of this opinion to summarize the main points of the Director's findings and our views thereon.

I.

The Director found that Bailey was traveling "at approximately 50 M.P.H. or slightly in excess thereof," and not 60 to 70 miles per hour, as Cresse contends and his expert testified.

We are satisfied, however, upon the whole record, that it cannot reasonably be concluded that Bailey was traveling only "50 M.P.H. or slightly in excess thereof" when he entered the intersection. We find that he was traveling at least 60 miles per hour at that time.

The Uniform Table of Driver Stopping Distances, agreed upon by ten national safety organizations (Am. Jur. 2 d Desk Book, p. 456) shows that the average driver will bring a passenger car with good brakes to a stop within the following distances after the driver sees danger: at 50 m.p.h., 258 feet; 60 m.p.h., 360 feet; 70 m.p.h., 486 feet. At 50 m.p.h., a car travels about 73 feet per second; at 60 m.p.h., about 88 feet per second; at 70 m.p.h., about 103 feet per second.

Tanyard Road slopes downward toward the intersection in question from the crest of a knoll about 1,500 feet north of the intersection. After Bailey came over the crest of the knoll, traveling south, he had an unobstructed view for the full 1,500 feet, for Tanyard Road is a straightaway. Bailey testified he first saw Cresse's car when it was about 80 feet east of

the intersection (which would be before Cresse stopped for the stop sign) and that he slowed down to 35 to 40 m.p.h. before he entered the intersection and collided with Cresse's car. Yet, after the collision, the Villari car (a 1954 Buick sedan) traveled southwesterly across the intersection about 30 feet, mounted and "chewed up" the earth bank, struck a utility pole on the southwest corner, changed course, traveled backward (probably tipped towards its left side) an additional 75 feet southerly along the edge of the dirt embankment which bordered Tanyard Road on the west, and then struck a second utility pole with such force that it not only sheared off the pole, but the Buick was cut almost in half by the pole, from the solid metal roof down to the chassis. The photographs demonstrate that, when it struck the second pole, the Buick must have been sliding on its left side.

Cresse points out many items in Bailey's testimony which prove him to be a witness not to be believed. We shall not itemize them. Suffice it to say that we agree that Bailey was not a credible witness. We are aware that we did not see him or hear his testimony, but neither did the Director, and the Director himself (as did the hearer) rejected important parts of Bailey's testimony.

In short, upon all of the testimony and the photographs, we hold that it can not be doubted that Bailey was traveling at least 60 miles an hour.

II.

The Director found that even from where Cresse said he stopped his car, in obedience to the stop sign, he had a view northward on Tanyard Road of 1,050 feet and, if he did not see Bailey approaching, it was because he did not look. We find that the record does not justify this finding.

Cresse testified that, when he stopped because of the stop sign, the front of his car was about one foot east of the tip of the grass island on the northerly side of Salina Road. This, he said, was 12 to 12 1/2 feet from the easterly edge of

the Tanyard Road pavement. From this point, he said, he could see about 300 feet north on Tanyard Road. Trooper Fognano testified that he stopped his car "within five feet" of the "berm" on the easterly side of Tanyard Road and from there he could see northerly about two-tenths of a mile (1,056 feet). The Director found that the two men stopped at approximately the same location; that therefore the explanation of the "discrepancy of 750 feet of visibility * * * depends upon the credibility of the witnesses"; and that Fognano, and not Cresse, was to be believed.

However, the record does not support the finding that the two men stopped at the same point. Fognano testified he stopped "within five feet" of the "berm." He described what he meant by "berm," as follows: "* * * we consider those roads as having no shoulders: From the paved portion there is just a slight area of dirt prior to coming to the grass berm. There is no room for a car to pull off the side there." Officer Kivlen testified that the paved portion of the road "runs directly to the grass," and the photographs bear him out. The hearer, in his findings, interpreted Fognano's testimony as being that he stopped "5 feet from the paved surface of the roadway."

We do not know what Fognano meant when he said he stopped "within five feet" of the berm -- whether he meant 1, 2, 3, 4 or 5 feet. If Fognano stopped exactly 5 feet from the "berm," the berm had to be 7 feet from the Tanyard Road pavement to put Fognano at the same point at which Cresse testified he stopped. If Fognano stopped closer to the berm than 5 feet, the distance from the "berm" to the pavement had to be correspondingly greater than 7 feet to make up the 12 or 12 1/2 feet. It is plain from the testimony and the photographs that the space between the Tanyard Road pavement and the "berm," as defined by Fognano, was a matter of inches -- certainly not 7 or more feet. Hence the two men did not look northward from the same point, and there is no basis for the finding that Cresse, had he looked from where he stopped, could have seen a distance of 1,056 feet.

III.

The Director held that, if Cresse could indeed see only 300 feet or so northward on Tanyard Road from where he stopped, this obliged him to keep looking -- i.e. , to make "effective observation" -- as he moved forward into Tanyard Road, for the speed limit on that road was 50 m.p.h. or 73 feet per second; that failure to make such observation violated N.J.S.A. 39:4-144; and that, if he had made such ...


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