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Finley v. Wiley

Decided: July 11, 1967.


Lynch, J.s.c.


Plaintiff moves for a new trial on the ground that the verdict of "no cause for action" rendered by the jury herein is "against the weight of the evidence" so that "it clearly and convincingly appears that the verdict was the result of mistake, partiality, prejudice or passion." R.R. 4:61-1. The particular interest of the motion is the issue as to whether a "slow moving" driver can be held guilty of contributory negligence when struck in the rear by the vehicle of defendant, at least under the circumstances here.

Plaintiff was driving a tractor in a southerly direction on Tonnele Avenue in Jersey City when his tractor was struck in the rear by the car operated by defendant. Tonnele Avenue is a four-lane highway, with two lanes running

south and two north. It is a well-traveled road, where the speed limit is 40 miles per hour.

Prior to the accident defendant had been riding in the left ("fast") southerly lane of Tonnele Avenue. Some distance ahead, but in the right ("slow") lane, there was a large "box" tractor and trailer which, as the evidence disclosed, was traveling behind plaintiff's tractor in the right lane. The tractor-trailer suddenly swerved from the right lane in front of defendant's car, at which point defendant swung to the right into the right lane. Defendant had not seen plaintiff's tractor because of the large tractor-trailer, and saw it for the first time as he swung into the right lane. According to defendant, plaintiff was traveling at about ten miles per hour. Defendant applied his brakes, skidded some 35 feet, overtook and struck plaintiff's vehicle in the rear, resulting in property damage and the personal injuries here sued for.

It was defendant's contention that since he had not been able to see plaintiff's tractor until he turned into the right lane, he was suddenly confronted with its existence; that it was proceeding at an unreasonably slow pace on this well-traveled, busy highway, and that because of the slowness of plaintiff's vehicle plaintiff was guilty of contributory negligence, resting in part on the duty imposed by N.J.S.A. 39:4-97.1 with respect to slow-moving vehicles. The court charged that section as a matter to consider on the issue of contributory negligence. The court also submitted two interrogatories: (1) with respect to whether defendant was negligent and (2) whether plaintiff was guilty of contributory negligence -- each as a proximate cause of the accident. The jury answered the first interrogatory to the effect that defendant was not negligent, and the second that plaintiff was guilty of contributory negligence.

N.J.S.A. 39:4-97.1 reads as follows:

"No person shall drive a motor vehicle at such a slow speed as to impede or block the normal and reasonable movement of traffic except

when reduced speed is necessary for safe operation or in compliance with law."

While there are no reported New Jersey decisions construing and applying N.J.S.A. 39:4-97.1 and the implications of its violation vis-a-vis negligence or contributory negligence, identical statutes in other states have been applied in factual situations where a plaintiff, driving at a relatively low speed, was struck from behind by another vehicle and yet was denied recovery.*fn1

In Seaton v. Spence, 215 Cal. App. 2 d 761, 30 Cal. Rptr. 510 (D. Ct. App. Cal. 1963), involving California's "slow speed" statute identical to that of New Jersey, the court said:

"Though it may seem somewhat singular that a plaintiff whose truck has been struck in the rear by defendant's automobile should be denied recovery, we are compelled to hold upon the record here that the question of whether plaintiff's slow driving upon a much traveled main highway constituted negligence which contributed proximately to the accident was one for the jury. The jury was fully and correctly instructed upon negligence and contributory negligence and the implied finding of the jury was that appellant was guilty of contributory negligence." (30 Cal. Reptr., at p. 515)

In that case, although defendant, who struck plaintiff's car in the rear, was admittedly held to be negligent, the appellate court affirmed the judgment in his favor, on the ground that the jury was justified in finding that plaintiff was contributorily negligent and that his negligence was a proximate cause contributing to the accident in driving his car at 10-20 miles per hour on a freeway. What the court said concerning the causative relation between ...

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