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Brown v. Mortimer

Decided: April 18, 1968.


Conford, Collester and Labrecque. The opinion of the court was delivered by Collester, J.A.D.


This is an appeal from a judgment entered following a jury verdict awarding plaintiff Frank Brown damages of $10,000 against defendant Sherry Van Dornick for personal injuries sustained in this automobile negligence action and a finding of no cause for action on the counterclaim of defendants Sherry Van Dornick and Florence Mortimer. Defendants' motion for a new trial was denied by the trial court.

The litigation resulted from an automobile collision which occurred at about 5:20 P.M. on Sunday, May 3, 1964, at an intersection of traffic lanes in the parking lot of King's Department Store in Edgewater Park Township. The pertinent facts are as follows.

Plaintiff testified that having completed his shopping in the store, he drove his Volkswagen bus, in which his wife and child were passengers, along a traffic lane in the parking lot which ran parallel with Route 130. He intended to go to a road which led from the store to Cooper Street. He said that as he approached an intersecting traffic lane in the lot which extended from the store towards Route 130 he made observations to his left and saw no car approaching. He looked to his right and saw a car some distance away coming from Route 130. He testified that he then drove slowly into the intersection where his automobile was struck on the left side, near the driver's seat, by a motor vehicle driven by defendant Sherry Van Dornick (then Sherry Schultz). As a result of the accident plaintiff sustained injuries.

Chief Henry Van Brunt of the Edgewater Park Police Department testified that Lieutenant Wagner, who had investigated the accident, was unable to testify because he was serving with the armed forces in Vietnam. (It is undisputed that Lieutenant Wagner arrived at the scene of the accident shortly after it occurred and before the injured persons were hospitalized.) Chief Van Brunt testified that the lieutenant prepared a police report which had been filed in his office. Defendants objected to Van Brunt's testifying because his

name had not been given in answers to interrogatories as a person who had relevant knowledge of the accident. The court ruled that the witness could testify as the custodian of the report.

The chief thereupon identified the report which contained a diagram showing the location of the cars and skidmarks at the scene of the accident. It showed skidmarks leading up to the rear of defendants' car 14' to 17' in length and ending in scuff marks to the left in the intersecting lane 3' to 4' in length. The chief further testified that it was the usual procedure for an investigating officer to secure the information necessary to prepare a report on a standard form issued by the Division of Motor Vehicles, including a diagram of the scene of the accident, and that such procedure is followed whether the accident occurred on either the public highway or private property.

The trial court, over defendants' objections held that the police report was admissible in evidence under section 35 of the Business Records As Evidence Act, N.J.S. 2 A:82-34 et seq. In view of the ruling defendants withdrew an earlier objection they had made to the testimony of John Shedosky, a police photographer, and the admission of photographs he had taken, which objection had been sustained by the trial court.

Shedosky testified that at Lieutenant Wagner's direction he met the lieutenant at the parking lot at about 6:30 P.M. following the accident. He said he took photographs of the skidmarks and scuffmarks and assisted Wagner in measuring them. He also took photographs of the damaged automobiles which had been towed to a service station.

Defendants' version of the accident contradicted that given by plaintiff. Mrs. Van Dornick testified that she was operating an automobile owned by her mother, Florence Mortimer, in which her two children and Mrs. Mortimer were passengers. She said that having completed shopping in the store she drove the car in a parking lot traffic lane headed towards Route 130 at a speed of about 5 m.p.h. When

she reached the intersecting lane she stopped her car. She looked to her left and right and saw no cars approaching. She testified she then drove four feet into the intersecting lane and again stopped when she saw plaintiff's car approaching on her right side. She said that after her car was stopped it was struck by plaintiff's motor vehicle. Mrs. Mortimer's testimony substantially corroborated that given by her ...

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