Conford, Collester and Labrecque. The opinion of the court was delivered by Conford, S.j.a.d.
Plaintiff suffered serious injuries on the early morning of November 15, 1963 when, while standing between his car and that of defendant Cotten on the South Pemberton Road in Burlington County, a third car driven by defendant Weaver struck the rear of the Cotten car with such violence as to jam it against that of plaintiff, crushing plaintiff's legs in the process. Plaintiff brought a negligence action against the drivers of all the other vehicles involved, including one Brown, whose role in the accident will be described hereinafter.
The incidence of the present appeal arises from the fact that plaintiff also joined the County of Burlington as a defendant, asserting that its negligent construction of the highway was a contributing factor in the accident and his resulting injuries.
The jury returned a verdict of $250,000 against three individual defendants but found no cause of action as against the county. This appeal thus presents only the matter of the validity of the judgment absolving the county. The practicalities of the matter are that the county had insurance liability coverage of $500,000 for injury to one person.
The county had in 1959 converted the three-mile highway segment on which this accident occurred, which is in a rural area, from a two-lane road with conventional shoulders to a four-lane highway without shoulders. There was no increase of the 66-foot right-of-way. Each paved lane was 11 feet wide. On the south side of this east-west highway, at or near the place of the accident, the paved lanes of the roadway were bordered by a grassy "berm" within the right-of-way, elevated variably from a few to as much as ten inches
above the pavement. There was some evidence it could be mounted by and sustain the weight of an automobile, but it is also inferable from the proofs that the driver of a car would not ordinarily regard it as a suitable place to park it when disabled or to drive onto in continuous motion from the paved roadway in order to pass a stopped car.
An understanding of plaintiff's claim of causal relation between the assertedly negligent omission of shoulders in the construction of the highway and the occurrence of his injuries requires further details as to the accident.
It all began when defendant Brown stopped his car astride the white line separating the two eastbound lanes of the highway and let it stand that way, unlighted, while he slept or reclined on the front seat or floor. Plaintiff Hughes and his wife came along in their car driving easterly and were able to stop just short of Brown's car. There was insufficient room to pass Brown's car on the right, and westbound traffic had prevented passing it on the left. Cotten, who with his wife had been the Hughes' guest at a lodge-dance from which they were separately returning home, came along in his car and struck the Hughes' car lightly in the rear. Hughes and Cotten went to investigate the Brown car and tried to detain Brown, but he drove away. At this point the Hughes and Cotten cars were on the extreme right side of the paved roadway. Hughes was standing between the cars investigating a noise in the Cotten car apparently the result of the impact. Weaver, driving easterly, and apparently at some speed, testified that he could not pass the Cotten car on the right at the time he first saw its lights because of the elevation along the south edge of the roadway, and that before he could turn to the left he struck the Cotten vehicle, with the tragic result to Hughes noted above.
At the trial two engineering experts testified on each side (i.e., plaintiff and county), plaintiff's in support of the view that the absence of shoulders was a departure from accepted standards in the construction of such a road, defendant's to the contrary. The trial judge gave the jury the issue of the
county's liability on the classic criterion of affirmative wrongdoing in the performance of a governmental function. Hartman v. City of Brigantine, 42 N.J. Super. 247 (App. Div. 1956), affirmed 23 N.J. 530 (1957).
Plaintiff's appeal raises principally these grounds: (a) there was error in submitting the question of the liability of the county on the criterion of governmental immunity except for active wrongdoing, in view of the new approach to that question of law taken in B.W. King, Inc. v. Town of West New York, 49 N.J. 318, 324-325 (1967) (decided after this case was tried); that the basis of liability should simply be negligence and proximate cause, as in the case of any other tortfeasor; and (b) no defense of governmental immunity should have been permitted to be raised by defendant, because the county was covered by a public liability ...