Conford, Labrecque and Halpern. Conford, S.j.a.d., (dissenting).
Plaintiff appeals from a judgment in favor of defendant following a jury verdict of no cause for action, and from denial of his motion for a new trial.
Plaintiff sued for personal injuries sustained when an automobile operated by defendant crashed into the rear of a "cab over tractor" (tractor) being driven by him. The accident occurred on Tonnele Avenue at a point where there were two traffic lanes in each direction divided by a center
line. Tonnele Avenue was heavily travelled and "beset with intersecting streets and traffic lights." The speed limit was 40 miles an hour. The accident occurred at about 5:15 P.M. on October 2, 1964. It was raining at the time and the road was wet and "very slippery." Plaintiff testified that previous to the crash he had been proceeding southerly in the slow lane at about 30 miles an hour. As he was driving along he was struck in the rear without warning.
Defendant had been proceeding south in the fast or inside lane. He testified that as he approached a tractor-trailer (unidentified) which was proceeding in the slow lane, the latter swung into the fast lane. Thinking the driver of the tractor-trailer intended to make a left turn, he first applied his brakes, then swung around the rear of the tractor-trailer into the slow lane in an attempt to pass to the right. When he was able to see ahead in the slow lane he for the first time saw plaintiff's tractor 50 feet in front of him, moving at about 10 (later said to be 15) miles per hour. He again applied his brakes but they locked and, without warning, his car skidded into the rear of plaintiff's tractor. The driver of the tractor-trailer made no left turn, apparently having intended only to pass plaintiff.
The only eyewitnesses to the accident were the respective drivers. At the conclusion of the case plaintiff's motion for withdrawal from the jury's consideration of the defense of contributory negligence was opposed by defendant on the ground that if the jury believed plaintiff was in fact travelling 10 miles an hour in the slow lane, they could find such conduct to be contributory negligence. Plaintiff's motion was denied and the case was submitted to the jury in a charge which required it to make separate and specific findings as to negligence and contributory negligence. In response to written interrogatories the jury found no negligence on defendant's part and contributory negligence on plaintiff's part. The entry of judgment was followed by a motion for a new trial on the ground that the verdict was contrary to the weight of the evidence. Denial of the motion was based
upon the trial judge's conclusion that he could not say that the jury's finding of contributory negligence was so against the weight of the evidence as to make it clearly and convincingly appear that the verdict was the result of mistake, partiality, prejudice or passion.
Plaintiff assigns as error (1) the court's ruling on his motion for a new trial, (2) the court's denial of his motion to exclude contributory negligence as an issue, and (3) the inclusion in the charge of the "sudden emergency" rule.
In passing upon plaintiff's challenge to the court's denial of his motion for a new trial, we are mindful that our appellate power is sharply circumscribed and we may not disturb the order appealed from unless, having due regard to the better opportunity of the trial judge to observe the witnesses and judge credibility, Hartpence v. Grouleff, 15 N.J. 545, 549 (1954), it clearly and convincingly appears that there has been a manifest denial of justice under the law. Kulbacki v. Sobchinsky, 38 N.J. 435, 452 (1962). If reasonable minds might accept the evidence as adequate to support the jury's findings, we may not disturb the action of the trial court. However, where it clearly and convincingly appears that the verdict was the result of mistake, partiality, prejudice or passion, it cannot serve to support the judgment, Hager v. Weber, 7 N.J. 201, 210 (1951), and it becomes our duty to act. Cf. Fisch v. Manger, 24 N.J. 66, 80 (1957).
As noted, in response to the court's direction, the jury found specially that defendant was free of negligence, and that plaintiff was guilty of contributory negligence. In his opinion denying the motion for a new trial the trial judge made no finding as to whether the jury's verdict on the issue of defendant's negligence was contrary to the weight of the evidence but premised denial of the motion on his conclusion that there was evidence to support the finding that plaintiff was guilty of contributory negligence.
In the absence of any finding by the trial judge on the issue of defendant's negligence, we have reviewed the transcript in its entirety ...