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Conroy v. Purcaro

Decided: April 20, 1964.

PATRICK CONROY, PLAINTIFF-APPELLANT,
v.
NICHOLAS PURCARO, DEFENDANT-RESPONDENT



For reversal and remandment -- Chief Justice Weintraub, and Justices Jacobs, Francis, Proctor, Hall, Schettino and Haneman. For affirmance -- None.

Per Curiam

This is an automobile accident case. The jury found for defendant and the Appellate Division affirmed. We granted certification. 41 N.J. 195 (1963).

Plaintiff parked his car on the shoulder of a highway. He opened the door on the driver's side and attempted to emerge. Defendant, approaching from behind, apparently first hit the left rear of plaintiff's car and then continued into the opened door.

Plaintiff estimated the car was 2 1/2 to 3 feet from the travel portion of the road before the accident, while a police officer who came to the scene after the occurrence fixed the distance at 11 or 11 1/2 inches. There were no marks on the road to indicate whether and to what extent plaintiff's car was moved by the impact. The jury could find either way with respect to whether the door, which measured 45 inches, extended into the roadway itself at the time of the collision.

In this setting the trial court granted defendant's request to charge:

"Request No. 4 reads as follows: It is the duty of the plaintiff, in the exercise of reasonable care, to make an observation for oncoming traffic before attempting to get out of his automobile. Further, the law imposes upon him a duty to make that observation an effective one.

If you find that the plaintiff either did not make an observation at all, or that if he did make an observation it was not effective, and that either of these circumstances contributed in any degree in the chain of proximate causation of the injuries he suffered, then I charge you that the plaintiff did not fulfill the duty imposed upon him by law and consequently cannot recover at your hands. In that event your verdict must be in favor of the defendant of no cause of action. I so charge you."

To this plaintiff objected, saying "I respectfully except to your Honor's charging of the fourth request of the defendant," to which the court replied "Very well. Your exception will be noted too."

I.

The Appellate Division found the charge was erroneous but held that plaintiff's objection to the charge did not satisfy R.R. 4:52-1 which provides that "No party may urge as error any portion of the charge or omission therefrom unless he objects thereto * * * stating distinctly the matter to which he objects and the grounds of the objection." The Appellate Division also declined to apply the plain error rule, R.R. 1:5-3(c), saying the evidence of contributory negligence was "most compelling" and the substantial rights of the plaintiff were not affected by the error.

The rule requires a distinct statement of the grounds of objection to a charge, to the end that the trial court will be aware of the criticism and may correct the charge in the light of that understanding. We think the objection here made, although inadequate if viewed in isolation, sufficed in the circumstances of this case. The objection was limited to the fourth request which (1) stated there was a duty to look and (2) specified the quality of the observation. The trial court had to know the objection ran to these two precise matters. No doubt, it would have been the better course for plaintiff to have articulated the reason why he thought the charge was wrong, but here the making of an objection itself tended somewhat to indicate the grounds, and on the motion for a new trial the trial court did not suggest that it was unaware of what plaintiff had in mind. Moreover, the alleged error was of defendant's own making, for it was defendant who fashioned the request. We do not mean that a requested charge is outside the quoted mandate of the rule, but since the rule is designed in part to protect a litigant from the ...


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