For reversal and remandment -- Chief Justice Weintraub and Justices Jacobs, Francis, Proctor, Hall, Schettino and Haneman. For affirmance -- None. The opinion of the court was delivered by Francis, J.
This is an automobile negligence death action. The suit was brought against the Director of the Division of Motor Vehicles of the State of New Jersey pursuant to N.J.S. 39:6-78, the Unsatisfied Claim and Judgment Fund Law, because the driver of the vehicle which caused the death is unknown. Following trial a jury returned a verdict for plaintiff in the amount of $20,000. Defendant's motion for a new trial was denied, but a remittitur of $12,000, reducing the judgment to $8,000, was accepted by plaintiff. On defendant's appeal, the Appellate Division found insufficient evidence of negligence to warrant submitting the issue to the jury for determination, set aside the verdict, and remanded the case for the entry of judgment for defendant. We granted plaintiff's petition for certification. 48 N.J. 116 (1966).
There were no eyewitnesses to the fatal accident. Most of the proof adduced came from a State Trooper who appeared
on the scene about 3:55 A.M. on September 29, 1962, some short time after the mishap.
The accident occurred in Elk Township, Gloucester County, on the Glassboro-Centerton Road, called Buck Road, about three-tenths of a mile south of the Glassboro-Elk Township line. The area is rural. The road, which is straight and level for a considerable distance, is 20 feet wide with a 2-foot shoulder on each side. It has no artificial lighting. The roadway and the shoulders have a blacktop surface. There are no curbs or sidewalks for pedestrian travel. Beyond the 2-foot shoulders are dirt and grass. There is no intersecting street to the township line.
The night of the accident was clear and the roadway was dry. When the trooper arrived at the scene he found the body of the deceased, Reuben O. Jones, age 33 years, lying at an angle across the center line of the roadway, the head pointing toward the east. It was in a pool of blood. The body was "broken up;" a bone was protruding from the left leg. He found the decedent's left shoe on the westerly shoulder 47' 2" north of the body; 48' 8" farther north he found a sizable piece of bone, obviously from the broken left leg. It too was on the westerly shoulder. Thus the bone was 95' 10" from the resting place of the body.
Further examination of the roadway in both directions revealed no skid marks or tire marks of any kind on the traveled surface or on the shoulders; nor did it disclose any debris or dirt spots which might indicate the point of impact.
The county coroner's certificate showed that the decedent had suffered a fractured pelvis, fractures of both femurs, internal injuries, ruptured intestine and internal hemorrhages. The defense proffered proof at the trial that a test of Jones' blood made at the request of the county coroner showed that he was intoxicated at the time of death. It was contended that such proof was material on the issue of contributory negligence as well as proximate cause of the accident. Since there was nothing to indicate any specific conduct or action on the part of Jones stemming from the intoxication which
could be said to have been related in cause to the contact between him and the unknown motor vehicle, the trial court declined to admit the proof.
We agree that the evidence of the culpable producing cause of the accident is meager. But in our judgment, viewing the circumstances in their totality and giving the plaintiff the benefit of all favorable inferences from them, as we must, factual issues are sufficiently raised as to whether Jones was struck by a motor vehicle, and as to the driver's negligence and decedent's contributory negligence, to require submission of the case to a jury for determination. Compare Hamilton v. Althouse, 115 N.J.L. 248 (E. & A. 1935); Mursky v. Brody, 13 N.J. Misc. 725, 181 A. 273 (Sup. Ct. 1935).
Here we have a straight, level roadway with nothing to obstruct the view ahead. A motorist driving along it would naturally be conscious of the absence of sidewalks, and thus chargeable with knowledge that pedestrians would walk on the narrow shoulders immediately adjacent to the limited 10-foot normal travel width of the roadway for each direction. Such circumstances, of course, demanded reasonably diligent use of his powers of observation. The Motor Vehicle Act required him to have headlights on his vehicle "when there is not sufficient light to render clearly discernible persons * * * on the highway at a distance of five hundred feet ahead." N.J.S. 39:3-46. If the vehicle has multiple-beam headlights, the high beam must be of such intensity as to reveal persons at a distance of at least 350 feet ahead. The low beam, which a jury could find that a reasonably prudent driver would not be using on a narrow road in a rural area, must be of ...