Gaulkin, Foley and Collester. The opinion of the court was delivered by Collester, J.A.D. Gaulkin, S.j.a.d. (dissenting).
[86 NJSuper Page 326] In this automobile negligence action plaintiffs Eile and Ardis appeal from a judgment of the Bergen County District Court following a jury verdict of no cause for action in favor of defendant Reed. Plaintiffs' motion for a new trial was denied. They contend: (1) the verdict was against the weight of the evidence; (2) the trial court erred in its charge to the jury; (3) the trial court erred in denying plaintiffs' application to reopen the case after defendant had rested; (4) the trial court erred in permitting cross-examination of plaintiffs and comment by defendant
in summation relating to their claims for loss of earnings as damages.
We consider first plaintiffs' contention that the verdict was against the weight of the evidence. A brief resume of the material facts is necessary.
It is undisputed that between 3:00 and 3:30 P.M. on December 24, 1959, a truck operated by defendant Reed collided with the rear end of an automobile operated by plaintiff Eile in which plaintiff Ardis was a passenger. The accident occurred on Route 46 in Teterboro, New Jersey. Both vehicles were proceeding westerly in the right-hand westbound lane just prior to the collision. Defendant's truck was immediately behind the Eile car. It is conceded that traffic in the westbound lane of Route 46 was extremely heavy. The remaining facts concerning the happening of the accident are in dispute.
Plaintiff Eile testified that just prior to the accident he had gradually slowed the speed of his vehicle in order to enter an Amoco gasoline service station located on the right side of the highway. He said a side street on his right intersected Route 46 just before the service station; that he intended to drive on the right shoulder of Route 46 and to enter the intersecting street on his right in order to cross into the side entrance of the service station. He stated that as he approached the intersection he saw the automobile of a woman motorist stopped on the intersecting street facing south towards Route 46, blocking the side entrance of the service station. He stopped his car for about a minute to permit the woman motorist to enter Route 46. He testified that after the woman motorist had entered the highway and headed west, his car was struck in the rear by defendant's truck. He said his motor vehicle was propelled west on the highway, past the intersecting street, and came to rest in front of the service station. Eile testified that his directional signal indicating a right turn had been on for "over a block" before he came to a stop; that his stop lights were operating, and that he had
indicated his intention to stop by signalling with his left hand extended from the car window. He said there was no snow or ice on the highway. Eile admitted that he made no observation of traffic to the rear of his vehicle, either while slowing down or stopped. He did not see defendant Reed's truck before the impact. Following the collision, while license information was being exchanged, Eile claimed he smelled a strong odor of liquor on Reed's breath.
Eile's version of the accident was corroborated by plaintiff Ardis, who was riding in the right front seat of Eile's car. Ardis also did not see defendant's truck before the collision.
Defendant's version of the accident is in direct conflict. He said he had been following the Eile car in heavy traffic for several miles at a speed of 5 to 10 M.P.H. and at a distance of 5 to 10 feet from its rear. He described the pavement as icy and wet. Defendant testified that when plaintiffs' automobile arrived at the gasoline service station it came to a sudden stop; that he immediately applied his brakes but slid into the rear of the Eile car due to the icy pavement. He said the lady motorist, referred to by plaintiffs, was not in an intersecting street because there was no intersecting street at this point of the highway. He said she was parked on the premises of the service station, "waiting to come out." He alleged that she did not come out of the service station and enter Route 46 until after the collision, which propelled the Eile car a distance ahead of 6 or 7 feet. He said that, after the impact, he had to back his truck up on Route 46 in order for the motorist to enter upon the highway between Eile's car and his truck. He testified that he was driving in third gear (there are five gears on the truck) at the speed of 5 to 10 M.P.H. immediately before the collision, and that he braked his truck when he saw plaintiff's stop lights go on and the Eile car stopped. He said he did not observe plaintiff's directional signal or hand signal. He denies he had been drinking, stating he had not touched alcohol since "1945, in Okinawa."
Both plaintiffs claimed neck injuries, commonly referred to as "whiplash." Both said they were required to wear cervical
collars for months after the accident. Both had sustained similar injuries in prior accidents and claimed the accident of December 24, 1959 aggravated such injuries. Ardis said he visited a doctor on the day of the accident and was examined once by Dr. Paul Glicksman on December 31. Twenty months later he was treated by Dr. Arthur Solk, who had been his physician for his prior injuries. Eile testified that after the accident he went to Valley Hospital where he received emergency treatment, and returned to the hospital on the following day when he was given medication for pain. He was treated by Dr. Glicksman on six occasions between December 26, 1959 and February 4, 1960. He said thereafter he was treated by Dr. Robert Borodkin for several months (Dr. Borodkin did not appear as a witness at the trial). Both Dr. Glicksman and Dr. Solk testified that in their opinions the injuries sustained in the prior accidents had been aggravated.
The verdict of the jury may not be set aside as against the weight of the evidence unless it clearly and convincingly appears that it was the result of mistake, partiality, prejudice or passion. R.R. 4:61-1; Wytupek v. City of Camden, 25 N.J. 450, 466 (1957). We may not disturb the action of the trial court in granting or denying a motion for a new trial "unless it is clearly manifest that the action of the trial court was without basis in law, or fact, or both, with the result that there was a denial of justice under the law." Hartpence v. Grouleff, 15 N.J. 545, 548 (1954); Hickman v. Pace, 82 N.J. Super. 483, 488 (App. Div. 1964). R.R. 1:5-3(a), made applicable to this court by R.R. 2:5, delineates our scope of review. We, too, may not set aside a verdict as against the weight of the evidence unless, having given due regard to the opportunity of the trial court and the jury to pass upon the credibility of the witnesses, it clearly and convincingly appears that the verdict was the result of mistake, partiality, prejudice or passion. Varlaro v. Schultz, 82 N.J. Super. 142, 153 (App. Div. 1964). The limited scope of our appellate review in passing upon the propriety
of the jury's verdict and the trial court's denial of a new trial has been clearly set forth in Kulbacki v. Sobchinsky, 38 N.J. 435, 446, 452 (1962).
In the instant case there was sharp conflict of testimony on many points with regard to the happening of the accident. The credibility of the witnesses was a major factor in the jury's determination. The jury could have determined from the facts that defendant was not guilty of negligence; that he exercised reasonable care in the operation of his motor vehicle under the circumstances that prevailed. It could have determined that plaintiff Eile was solely negligent in bringing his motor vehicle to a sudden stop, admittedly without having made an observation of traffic immediately behind his vehicle. Then, too, the jury could have determined that neither plaintiff sustained injuries which were proximately caused by the collision. Watkins v. Myers, 12 N.J. 71, 74-75 (1952); Murphy v. Terzako, 14 N.J. Super. 254, 260-261 (App. Div. 1951).
Plaintiffs argue that the jury "completely ignored the unrebutted evidence of the plaintiffs' experts as to the fact that each of the plaintiffs sustained injury," and that the "total disregard of the plaintiffs' medical testimony, the credibility of which stands unimpeached, is of itself ground for a new trial." It is true that defendant did not produce any medical witnesses to refute plaintiffs' testimony. However, it is clear from the record that defendant did not concede that plaintiffs sustained injuries in this accident, and he subjected all witnesses to cross-examination designed to nullify plaintiffs' contentions. In Ferdinand v. Agricultural Ins. Co. of Watertown, New York, 22 N.J. 482 (1956), the court said,
"Where men of reason and fairness may entertain differing views as to the truth of testimony, whether it be uncontradicted, uncontroverted or even undisputed, evidence of such a character is for the jury." (at p. 494)
The evidence in this case was fairly susceptible of divergent inferences. As before stated, credibility was a major
issue. Applying the pertinent rules and the construction given them by our appellate courts, we find that the verdict was not against the weight of the evidence and ...