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Nesta v. Meyer

Decided: April 22, 1968.

ALPHONSE NESTA, PLAINTIFF-APPELLANT,
v.
ARNOLD MEYER, DEFENDANT-RESPONDENT



On appeal from Superior Court, Law Division, Ocean County.

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

Labrecque

Plaintiff Alphonse Nesta appeals from a judgment for defendant following an adverse jury verdict, and from denial of his motion for a new trial.

Plaintiff sued for personal injuries arising out of an automobile collision which occurred at the intersection of Route 35 and First Street, Ortley Beach, Ocean County. At the point of the accident Route 35 is a divided highway consisting of two northbound and two southbound lanes (the northbound section is one block to the east of the southbound section). Plaintiff had been following defendant as they were proceeding in a southerly direction in the right-hand lane. He pulled out to pass defendant when he was about 200 feet (one block) from First Street. While plaintiff was in the passing lane defendant attempted a left-hand turn into First Street from the right-hand lane. In doing so he collided with plaintiff with resultant personal injuries to the latter.

The speed limit was 35 miles per hour and there was a sign 75 feet from the point of impact directing traffic to keep right except while passing. Plaintiff testified that defendant had been proceeding slowly; he pulled out intending to pass defendant but then changed his mind; he himself was traveling only about 25 miles an hour and the two cars had been moving alongside one another for about 50 feet before the crash. Defendant's version was that he had observed plaintiff approaching from the rear when he was about a block from the intersection. In preparing to make a left-hand turn he had put on his left turn signal "a block back at least" and when about 150 feet from the intersection had applied his brakes. He had reduced his speed to at about five miles an hour when he turned left from the right lane. Plaintiff denied seeing the left turn signal at any time.

The accident was investigated by Officer Chafatelli of the local police who related that he found 15 feet of skid marks made by plaintiff's automobile prior to the point of impact and 35 to 45 feet of skid marks (which were somewhat lighter in color) beyond it. He was unable to state the length of the break between the two sets of skid marks but testified that they were all in the left (passing) lane. Defendant testified that about half an hour after the accident he and another person returned to the scene with a 100-foot tape and found that the skid marks measured 145 feet in length. There was no attempt to reconcile the difference between the two measurements although the break described by Chafatelli may have accounted for part of it.

The jury returned a verdict of no cause for action by a 10 to 2 vote. The trial judge denied plaintiff's motion for a new trial and the present appeal followed.

Plaintiff's first point is two-pronged: that it was error to exclude "expert" testimony by Chafatelli as to plaintiff's speed, based upon the skid marks made by plaintiff's car, and error to allow testimony as to the presence of such skid marks in the absence of expert testimony as to their significance. We find neither contention to be meritorious.

In determining whether the conduct of the respective drivers comported with reasonable care under the circumstances presented at the time of the accident in question, it was proper to submit to the jury evidence as to the skid marks left by their vehicles. These were relevant not only as to speed but as to the location and direction of the vehicles and the reactions of the drivers to the situation which presented itself. Cf. Tischler v. Steinholtz, 99 N.J.L. 149 (E. & A. 1923); DiNizio v. Burzynski, 81 N.J. Super. 267, 272 (App. Div. 1963). Where speed is in issue, the distance required to bring a vehicle to a stop, the skid marks left in connection therewith and the final position of the car, are significant elements. Cf. State v. Kellow, 136 N.J.L. 1, 5 (Sup. Ct. 1947), affirmed 136 N.J.L. 633 (E. & A. 1948). Expert

testimony is not a prerequisite to the admission of such testimony.

Plaintiff argues that Officer Chafatelli was qualified as an expert to determine speed based upon skid marks and that it was error to decline to permit him to testify as to plaintiff's speed from the skid marks. We disagree. In general, expert testimony is admissible where the witness offered has peculiar knowledge or experience not common to the world which renders his opinion founded on such knowledge or experience an aid to the court or jury in determining the question at issue. Rempfer v. Deerfield Packing Corp., 4 N.J. 135, 141-42 (1950). In DiNizio v. Burzynski, supra, 81 N.J. Super. pp. 272-274, cited by plaintiff, we held that, where the speed of the vehicle was in issue, opinion evidence from a qualified expert, in reply to a hypothetical question which included the facts in the case concerning the course, length and nature of skid marks left by the vehicle, was properly admitted. In that case the expert witness was a traffic engineer, Director of the Department of Safety and Traffic of the New Jersey Automobile Club and had a long history of training and teaching in the fields of driver education, traffic safety and accident prevention.

Here the police officer was not an engineer and had had no special training in assessing the speed of vehicles from skid marks or other indicia at the scene. It is a matter of common knowledge that skid marks may be affected not only by the speed at which a vehicle is being driven, but by the condition of the surface of the highway, the type of tread and degree of wear of the tires, the weight of the vehicle, the condition of the brakes and the manner in which they are applied. Within the discretion allocated to trial courts in matters of this type, we find no mistaken exercise of discretion in the exclusion of the proffered testimony.

Further, assuming that the testimony was improperly excluded, we are satisfied that plaintiff suffered no prejudice. R.R. 1:5-3(b); cf. DiNizio v. Burzynski, supra, at pp. 274-275. While the offer of proof did not go so far

as to state what the officer's estimate of plaintiff's speed would have been had he been permitted to testify, it is entirely reasonable to conclude that had he been permitted to do so his opinion would not have been helpful to plaintiff. He testified in response to a question as to the knowledge he had acquired when attending the Police Academy that "for instance, if there was [ sic ] 50-60 feet of skidmarks, the car was [ going ] well over 85 miles an hour."

Plaintiff next contends that the trial judge erred "in not illustrating and defining to the jury the effect of speed with regard to proximate cause and in refusing to charge ...


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