For modification -- Chief Justice Weintraub, and Justices Jacobs, Francis, Schettino and Haneman. For affirmance -- Justices Proctor and Hall. The opinion of the court was delivered by Schettino, J. Proctor, J. (dissenting). Justice Hall joins in this opinion.
Plaintiffs Gravinese, Quinn and Stackenwalt sued defendant Washburn for personal injuries. Defendant answered and filed a third-party complaint against Buffalo Wood Products, Inc. (Buffalo), McGraw, Jean Koh, Pun Kien Koh and Robert Koh (the Kohs), Wolfe and Walborn as third-party defendants for personal injury and property damage and for contribution. Pun Kien Koh cross-claimed against Wolfe, Walborn and Washburn for damages and the Kohs cross-claimed against these same three for contribution. All causes were consolidated for trial.
Washburn's third-party complaints were dismissed by the court prior to submission to the jury. Plaintiffs' claims against Washburn were submitted to the jury and resulted in verdicts in favor of Gravinese, of $12,000, Quinn, of $16,000, and Stackenwalt, of $6,000. No disposition appears in the record of the Kohs' affirmative claim for relief.
Washburn appealed to the Appellate Division which, by a 2-1 vote, remanded for a new trial as to the liability of Washburn to plaintiffs and as to the liability of Buffalo and the Kohs to Washburn, and affirmed the dismissal of Washburn's action against Wolfe and Walborn. By virtue of the dissent, appeals as of right (R.R. 1:2-1(b)) were taken to this Court by Stackenwalt, Gravinese and Quinn, Washburn, Buffalo and McGraw and the Kohs.
The facts are not essentially in dispute. The accident from which these actions arose occurred December 28, 1959, shortly after 7 A.M., on the New Jersey Turnpike, and involved at least nine motor vehicles. Stackenwalt, Gravinese, Quinn and Washburn, all residing in the Camden-Philadelphia area, were employed by the Armstrong Cork Company at Port Reading, New Jersey, and had formed a car pool for going to and from work. Each one drove his automobile every fourth day. On that day it was Washburn's turn to drive. He awakened at about 5 A.M. and noticed that it was "very foggy." At about 5:30 A.M. Washburn telephoned Gravinese and asked him whether in view of the fog they should drive.
Gravinese replied that as they were already up, they should "chance it." Gravinese drove his car to Washburn's residence. He said that the fog was "bad"; that visibility was limited to 30-40 feet; and that he drove the entire eight miles from his home to Washburn's in low gear. Gravinese got into Washburn's car and the latter drove to Exit 4 of the New Jersey Turnpike where they met Stackenwalt and Quinn. Quinn testified that he noticed quite a bit of fog and thus drove at a reduced rate to the meeting place. Stackenwalt had the same experiences. After a discussion of the weather conditions, they decided to "go ahead and try it." Gravinese sat in the front of the car with Washburn and Stackenwalt and Quinn in the rear. They entered the northbound part of the Turnpike about 6 A.M. Shortly thereafter Gravinese, Stackenwalt and Quinn fell asleep.
Because of the fog, the Turnpike Authority had reduced the speed limit from 60 miles to 35 miles per hour.
Washburn testified that when he passed a sign which indicated that a certain Howard Johnson Restaurant, at which they intended to stop for coffee, lay ahead, he slowed his speed from 35 m.p.h. to between 25 and 30 m.p.h. Washburn was driving in the center of the three northbound lanes. He said that after going a few miles further he drove into an area where the fog was "a little heavier than normal. Just as I came into this area I seemed to hear noises in front of me. I heard the noises and I saw what I assumed to be a couple of lights, but they didn't seem to be spaced like they were tail-lights on a car."; one seemed to be directly in front of him and the other "over to the left." He said that "at this point a number of things seemed to have occurred almost all at once. I applied my brakes, turned my wheels to the right. I was struck in the rear and I seemed to strike something in the front." He was rendered unconscious and when he revived found himself lying on the side of the road. He next remembered being in the hospital where he had been taken by ambulance.
New Jersey State Police Trooper Miller was called as plaintiffs' witness. He testified that he was patrolling the Turnpike between Exits 8 and 9, and that as he approached Milepost 75, northbound, he came upon a "back-up" of traffic. He said that the traffic was "rather heavy" at this time (7:15 A.M.) as it was the rush hour of the morning, and that the "fog was heavy" and the roadway was damp. He saw a man standing in the roadway waving a red flare. He stopped immediately, turned on his red lights, and investigated the cause of the traffic tie-up which, he found out, involved nine vehicles in the accident.
Vehicle No. 1 was a truck owned by Buffalo Wood Products, Inc. and operated by McGraw. McGraw told Miller that he was driving along the center lane when he noticed a vehicle ahead of him slowing down because of the intense fog. He estimated his speed at 30 to 35 miles per hour. His vehicle was struck in the rear by a passenger car and a tractor-trailer loaded with steel. Miller found No. 1 in the center lane in a partial jack-knife position.
Vehicle No. 2 was a Chrysler passenger car owned by Jean Koh and Pun Kien Koh and operated by Robert Koh. This driver told Miller that he was traveling in the center lane behind No. 1, when he noticed it slow down. His car was struck in the rear by two other vehicles which drove his car into the rear of No. 1. He estimated his speed at 30 m.p.h. Miller found the front end of vehicle 2 in contact with the rear of No. 1.
Vehicle No. 3 was a passenger car owned and driven by Summer J. Kunin, not a party to these cases. He told the trooper that he was traveling north in the center lane, that when he noticed traffic had either slowed down, or was stopped ahead, he applied his brakes, pulled to his left, struck the left rear of No. 2 with the front right of his car, and then came to a stop on the median which separated the northbound and southbound lanes of the highway.
Vehicle No. 4 was owned and operated by Joseph Foy, not a party. Foy told the trooper that he was traveling in the
center lane behind No. 3, that, when he noticed the traffic ahead slow down, he applied his brakes and pulled to the left. The right front of his vehicle collided with the left rear of No. 2. He also stopped on the median.
Washburn was the operator of Vehicle No. 5. In his statement to Trooper Miller at the hospital, Washburn stated that as he was traveling north in the center lane he noticed traffic stopped in front of him, "applied his brakes and failed to stop in safety.", and struck the rear of No. 1 with the front left side of his vehicle. (The trooper noted extensive damage to the front and left side of this car which had ended up on the right-hand shoulder of the road north of Vehicle No. 1.)
Vehicle No. 6, owned by Joanne Bundrant, was operated by James L. Ellison, not parties. It was found with its front end in contact with the rear end of No. 2. Ellison estimated his speed at 35 m.p.h.
Vehicle No. 7 was a tractor-trailer, owned by J. Donald Wolfe and operated by Samuel E. Walborn. Walborn told Miller that he was traveling in the right-hand lane, that when he noticed traffic ahead of him, he applied his brakes and moved to the left, struck the right rear of No. 1, and that his trailer was struck in the rear. Trooper Miller found No. 7 parked at a 45-degree angle crossways on the right-hand shoulder, about 15 feet from the Washburn car. Walborn estimated his speed at 35 m.p.h.
Vehicle No. 8 was a tractor-trailer owned by P. & M. Trucking Lessors, Inc., and operated by Woodrow Wilson Pollard, not parties. It apparently collided with the rear of No. 7.
Vehicle No. 9 was a tractor-trailer owned by Davidson Transfer and Storage Company, and operated by Joseph J. Sudbrok, not parties. Trooper Miller found it headed north in the left-hand ...