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Levine v. Scaglione

Decided: June 19, 1967.

SYLVIA LEVINE AND LOUIS LEVINE, PLAINTIFFS-APPELLANTS,
v.
VINCENT SCAGLIONE, DEFENDANT-RESPONDENT



Sullivan, Kolovsky and Carton. The opinion of the court was delivered by Kolovsky, J.A.D.

Kolovsky

[95 NJSuper Page 339] In this automobile negligence-pedestrian knock-down case, plaintiffs appeal from a judgment for

defendant entered after a jury trial and from the trial court's denial of their motion for a new trial.

Plaintiffs urge three grounds for reversal. The most significant is the claim that the verdict was against the weight of the evidence and that the trial court erred in denying the motion for a new trial.

The only verdict returned by the jury was that "the defendant [was] not guilty of negligence." Our consideration is therefore limited to that finding. Kulbacki v. Sobchinsky, 38 N.J. 435, 452 (1962). We may not consider whether a general verdict of no cause for action would be immune from attack because of other issues in the case, including that of contributory negligence. There was no general verdict; the jurors ceased their deliberations, as the court's charge had expressly directed them to do, once they had decided that defendant was not negligent.

Applying the rationale of Kulbacki, supra, 38 N.J., at pp. 446-452, we have reviewed and considered the record and the trial court's reasons for denying a new trial. We conclude that under the proofs in this case, there was no reasonable justification for a finding that defendant was not negligent and that there has been "a manifest denial of justice under the law" mandating a new trial.

Mrs. Levine testified that she was standing south of the center line of Prince Street when she was struck. That testimony is confirmed by the other relevant evidence in the case, the testimony of the policeman who measured the distances from the southerly side of Prince Street to Mrs. Levine's body, and the admissions made by defendant in his testimony and in his answers to interrogatories. From that evidence it appears that defendant's westbound automobile was over the center line of Prince Street when, as defendant says, "the side of [its] left front fender" came in contact with Mrs. Levine.

Defendant testified that he was driving in a westerly direction on Prince Street intending to make a left turn into Morris Avenue. Morris Avenue runs in a southwesterly direction,

beginning at a point in Prince Street a short distance west of the point of impact. Defendant did not see Mrs. Levine at any time before the accident; the first time he saw her she was "sliding to the street at a point immediately next to the left side of my car near the windshield."

Defendant described what happened as follows:

"I was going along keeping to my right and then all of a sudden the reflection of the sun hit my eyes and I was blinded momentarily. After I regained my vision, I heard a noise and I applied my brakes and I stopped as I looked out I see Mrs. Levine laying on the floor."

By his own testimony defendant, when blinded by the sun, did nothing either by way of applying his brakes or lowering his sun visor. He continued driving until he regained his vision and heard the noise of ...


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