Gaulkin, Labrecque and Brown. The opinion of the court was delivered by Brown, J.A.D.
Plaintiff appeals from a jury verdict in favor of defendant Michael P. Esposito and denial of his motion for a new trial.
Plaintiff, a Rockaway Township police officer, was directed by his superior to assist in the apprehension of two automobile
speeders (later ascertained to be defendant Esposito and one Carl Decker) who were engaged in a drag race and being pursued by an officer of the adjacent Township of Denville. Plaintiff sustained severe injuries when his police car was struck by that of Decker at an intersection. He instituted suit against both drivers. There was a settlement by Decker and, at the trial against Esposito which followed, the jury found for defendant.
Esposito admitted that he engaged in a race with Decker on Morris Avenue in Denville, but testified that it was meant to end at Ford Road and that he did not compete with Decker thereafter. Esposito continued to drive behind the Decker vehicle, however, for an additional distance of more than two miles until he came to a stop at the Boonton Radio plant in Rockaway Township.
It was open for the jury reasonably to find from the evidence that Esposito did not break off the race until he reached the latter point, three-tenths of a mile from the collision intersection. If this was the jurors' conclusion, they were not instructed properly upon the resulting question of proximate cause.
They had been told by the judge, in his charge, that plaintiff sought to recover from Esposito on the basis that the latter was jointly negligent with Decker and, in particular, that Esposito thereby created a foreseeable risk that Decker would hit another car. Then, in substance, the Esposito defense was outlined by the court as follows:
"The defendant says, and you heard this throughout the trial, that, 'I had no personal knowledge of the collision. I was not in the auto involved in the accident. I had stopped. I was standing still. The accident was three-tenths of a mile away.'
All this means just one thing. These aren't separate theories of law. All this just means that he was not guilty of any negligence but that the accident was the sole negligence of Carl Decker * * *."
The jury was further instructed that if the combined or concurrent negligence of both drivers was the proximate cause of plaintiff's injuries, Esposito would be liable, but that the
verdict should be in the latter's favor if Decker's negligence was the sole proximate cause. It was suggested that Decker's conduct be first considered in the deliberations. A finding in his favor on the ...