For reversal and remandment -- Chief Justice Weintraub and Justices Jacobs, Francis, Proctor, Hall and Schettino. For affirmance -- None. The opinion of the court was delivered by Hall, J.
The plaintiff's decedent lost his life in a collision between the car he was driving and a panel pick-up truck owned by the defendant corporation and operated by its employee, the defendant Gallitano. The accident occurred in daylight at an intersection in the residential area of Hackensack where there were no lights or signs controlling traffic. The decedent never regained consciousness and Gallitano was the only other eyewitness. The proofs at the trial on the basic issues of negligence and contributory negligence of the respective drivers and of proximate cause were necessarily very meager. Gallitano was called by the plaintiff and gave his version of the accident. The only additional evidence was circumstantial, relating to the locale, the point of impact and the position of the vehicles after the crash. Defendants' motion for involuntary dismissal at the end of the plaintiff's case was denied and they then rested without presenting any witnesses.
Plaintiff had a verdict from the jury for $75,000 for wrongful death plus a small sum for damage to the automobile. No cause of action was found on the counterclaim for damage to the truck. The Appellate Division reversed and remanded for a new trial. 87 N.J. Super. 301 (1965). It decided there was plain error, R.R. 1:5-3(c), by reason of the inclusion in the charge to the jury, without objection by the defendants, of the instruction that "the law presumes that at the time and place in question the decedent was using due care when he drove his car into the intersection." We granted certification on the plaintiff's application. 45 N.J. 31 (1965).
At the outset we ought to say that we find no merit in defendants' suggestion that the reversal should be sustained on the basis of other claimed trial errors. We are satisfied there are none which rise to that magnitude. The principal question before us thus comes down to the correctness of the conclusion of the Appellate Division. Since our conviction is that, under all the circumstances, there was no reversible
error in the charge, we shall also have to deal with a further question raised by the plaintiff, not reached by the Appellate Division, concerning the apportionment of the wrongful death recovery between the decedent's widow and daughter.
R.R. 1:5-3(c), applicable also in the Appellate Division by R.R. 2:5, authorizes the appellate court to consider "plain errors affecting substantial rights of a party" urged on appeal, though not raised at the trial level. The standard thereby imposed is to be considered with that set forth in the preceding subsection, R.R. 1:5-3(b) controlling appellate action where the error complained of was called to the attention of the trial court. Even in that case -- the usual one since objection below is ordinarily vital to ground appellate review -- the trial result shall not be disturbed "unless a denial of the relief sought appears to the court to be inconsistent with substantial justice." Obviously, a more stringent criterion is intended to justify overlooking the importance of the opportunity of the trial judge to prevent or correct error before it may endanger a judgment or unnecessarily extend the litigation.
We have always made it clear that the plain error remedy will be sparingly employed, not casually invoked. Ford v. Reichert, 23 N.J. 429 (1957). The strict basis for its proper application has been frequently stated. "It is not the discovery of an error that is merely plain, i.e., apparent, distinct, undisguised, that warrants a nullification of the judgment. It must be one that prejudicially affects the substantial rights of the aggrieved party." Valls v. Paramus Bathing Beach, Inc., 46 N.J. Super. 353, 358 (App. Div. 1957). Recently this court put it this way, in treating specifically of a claim of plain error in a charge: "Such error exists when the language employed by the trial judge in guiding the deliberations of the jury constitutes legal impropriety affecting the substantial rights of the party affected
of sufficiently grievous nature to justify notice by the reviewing court and to convince the court that, of itself, the error possessed a clear capacity to bring about an unjust result." Vespe v. DiMarco, 43 N.J. 430, 435-436 (1964). (Emphasis added) The underlying philosophy is that "a manifestly unjust result shall not be ordered because of the oversight of the advocate." In re Appeal of Howard D. Johnson Co., 36 N.J. 443, 445 (1962). Conversely, however, "[o]versight and inadvertencies of the court deemed to be harmless and unimportant by the attorney at the trial cannot without diligent objection be normally exaggerated on appeal. In such exigencies a degree of passive indifference, if not acquiescence, is inferred." Valls v. Paramus Bathing Beach, Inc., supra (46 N.J. Super., at p. 357).
In the case before us, it may be observed that the very experienced defense counsel, in taking no exception to the charge, may well have thought at the time that it was not erroneous, or at least not prejudicially so, to tell the jury of the existence of a presumption of due care on the part of a decedent. He referred to it in his motion for involuntary dismissal at the end of the plaintiff's case, and in his summation told the jury, "There will be talk, perhaps, to you that there is a presumption that Mr. Jurman was driving properly." Thereafter he argued in effect that the evidence demonstrated it had been overcome and showed the decedent to have been negligent.
The appropriate appellate inquiry where plain error is claimed thus is to determine both whether there was reversible error at all and whether a manifestly unjust result, or the clear capacity for it, came about by reason thereof. The latter necessarily involves a consideration of the whole case. Where the alleged error relates to the charge, the instructions have to be examined at least as closely as established principles would require if objection had been made pursuant to the mandate of R.R. 4:52-1. Those principles dictate that, while the court's instructions must outline the function of the jury, set forth the issues, correctly state the applicable
law in understandable language, and plainly spell out how the jury should apply the legal principles to the facts as it may find them (Post v. Manitowoc Engineering Corp., 88 N.J. Super. 199, 207 (App. Div. 1965)), reversible error does not exist if, when the charge is considered sensibly and as a whole, a lay jury would have understood the salient features and would not have been confused or misled even though part, standing alone, might be regarded as incorrect. Stackenwalt v. Washburn, 42 N.J. 15, 26-27 (1964).
So reviewing the evidence and the instructions here, we are satisfied that any error in charging a presumption of due care did not produce either the capacity for or the actuality of an unjust result. From a factual viewpoint, the proofs on the vital issues of negligence, contributory negligence and proximate cause, though sparse and leaving much to inference, were such as to permit the jury with entire propriety to reach the verdict it did without considering the presumption that the decedent was exercising due care for his own safety. (It also could, with equal appropriateness, have reached the opposite result.)
Gallitano, in the truck, was proceeding west, up a grade. To his right, the decedent was coming south on the intersecting street. As we have said, there was no traffic light at the corner and neither street was a "stop street". An apartment house was located on the northeast corner 30 or more feet from each street, but it was inferable that the setback was not deep enough to permit a long view by either driver down the street he was about to cross. The collision of the front of Gallitano's truck with the left side of the decedent's car occurred, with considerable force, in the northwest quadrant of the intersection, i.e., the front of the former's vehicle had passed the center line of the intersecting street while the decedent's automobile had not yet reached that point. There were no skid marks at the scene, leading to the permissible, though not necessarily exclusive, inference that neither driver had seen the other for any appreciable time before the crash. Gallitano testified that he was moving in second gear at 15
miles per hour and that he made but one observation to his right as he approached the intersection. This was made when he was 50 feet away and he saw nothing approaching within the 75-foot distance his view permitted. His somewhat unclear testimony as to when he first saw the decedent is best recounted in the Appellate Division's summary:
"He then proceeded into the intersection without further observation, and when he reached the center, 'out of the shadow of [his] eye' he saw a car coming 'full speed.' It was about three or four feet away, 'so close [he] couldn't estimate.' This was the first time he saw the Jurman car. He said also that when he first observed the car it was 'right close' to Essex Street and was 'maybe' the length of 'one or two cars' away. Again he said it was 'right in front' ...