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Hill v. Macomber

Decided: October 1, 1968.

VICTORIA A. HILL, PLAINTIFF, LOUISE C. HILL; VERNON E. DAVIS, JR. AND JAMES CROSBY DAVIS, MINORS BY THEIR FATHER AND GUARDIAN AD LITEM, VERNON EARL DAVIS AND VERNON EARL DAVIS, IN HIS OWN RIGHT, PLAINTIFFS-RESPONDENTS,
v.
FREDERICK O. MACOMBER; CHARLES C. HILL, ADMINISTRATOR C.T.A. OF ESTATE OF CROSBY M. HILL, DECEASED, DEFENDANTS-RESPONDENTS, AND ALBERT E. BARRY, DEFENDANT-APPELLANT. CHARLES C. HILL, ADMINISTRATOR C.T.A. OF THE ESTATE OF CROSBY M. HILL, DECEASED, PLAINTIFF-RESPONDENT, V. FREDERICK O. MACOMBER, DEFENDANT-RESPONDENT, AND ALBERT E. BARRY, DEFENDANT-APPELLANT



Conford, Kilkenny and Mintz. The opinion of the court was delivered by Kilkenny, J.A.D.

Kilkenny

Trial of these consolidated personal injury and death actions resulted in substantial verdicts in favor of plaintiffs and against defendants Macomber and Barry, except that the $7,500 verdict in favor of Victoria A. Hill is against Macomber alone. Barry's motion for a new trial was denied. Barry appeals from the judgment based on the verdicts against him.

Macomber has not appealed. His position on this appeal is that the trial court did not commit error and the judgment should be affirmed.

We reserved, pending oral argument of the appeal, a motion to dismiss Barry's appeal made by plaintiff Charles C. Hill, administrator c.t.a. of the estate of Crosby M. Hill, deceased. We now deny that motion. We are satisfied that the technical objection as to the caption of Barry's notice of appeal, in which the title of the consolidated action brought by movant was not mentioned, does not deprive this court of jurisdiction to hear Barry's appeal from the judgment in that case or warrant dismissal of his appeal from the result of that action. The movant was timely served with the notice of appeal. In the body of the notice of appeal it is clearly manifested that Barry is appealing "from the whole of the final judgment entered * * * on October 9, 1967" in favor of the several plaintiffs named, including expressly "Charles C. Hill, administrator c.t.a. of the estate of Crosby M. Hill, deceased." The specified judgment, generally captioned the same as that on Barry's notice of appeal, included the awards in favor of the plaintiff representative of the estate as to both claims made by him.

We touch briefly on the broad outlines of this three-car, successive collision accident to put the issues in proper perspective.

On February 28, 1965, a clear dry day, about 6:50 P.M., Crosby Hill was driving his automobile south on Route 50 near Mays Landing, New Jersey. His daughter Victoria, then about 21 years old, was in the right front passenger seat and was holding her two-year-old nephew James Davis on her lap. Louise Hill, Crosby's wife, and his other grandson, seven-year-old Vernon E. Davis, Jr., were in the rear of the car, with Louise on the left and Vernon on the right. There was testimony that at that time and place an automobile operated by defendant Macomber northerly along Route 50 veered across the white line separating the northbound and southbound traffic and struck the Hill car head-on in the southbound lane. Both vehicles were then traveling at a speed of 40 to 50 miles per hour.

The impact between the Hill and Macomber cars was undoubtedly a heavy one. The lack of skidmarks in the roadway, the speed at which each vehicle was traveling before they met head-on, the physical damage to the front of each car as demonstrated by the photographs in evidence, and the debris in the southbound lane of Rout 50 left by the collision -- all attest thereto. Trooper Bellarosa of the State Police was at the Mays Landing barracks at about 6:50 P.M. on that Sunday evening, about a mile or a mile and a half away and, as he testified, he heard a crash and went down the road to investigate the accident.

Following the initial impact, Victoria Hill unfastened her seat belt and got out of the car. She started to the back of her father's car when there was "another heavy crash," according to her testimony. She stood for a few seconds until she gathered herself together and then went back to her car to find James. In her words, "he was hanging out of the car with his head out and his feet on the seat." He had not been in that position when she left the car. She took him up and started down the street for help when a man came up. Trooper Bellarosa was right behind him. She was then taken by ambulance to the hospital.

In that short interval while Victoria was out of her father's car -- a matter of a few minutes at most -- Barry, also proceeding northerly on Route 50, drove his automobile into Macomber's disabled car, striking its left rear with the right front of Barry's. The path Barry's automobile traveled after striking the Macomber vehicle was not testified to by any eyewitness. But when the trooper came upon the scene within minutes of the accident he observed and testified to the location of all three cars.

According to Trooper Bellarosa, the rear end of the Macomber car was in the southbound lane; the vehicle was facing in a westerly direction at a right angle, and part of it protruded on the shoulder. No portion of Macomber's automobile was then in the northbound lane. The Hill car was at least partially off the road, on the shoulder of the road against or near a telephone pole, as we understand the record. Barry's automobile was resting against Hill's vehicle. In the trooper's words, "they were intermingled. There was damage to the right front of the Hill vehicle and it was actually interlocked with the left front door of the Barry vehicle. * * * It was intermingled so that the wrecker had to take them apart." (Emphasis added)

Barry's argument on appeal does not challenge the jury's finding that he was negligent. Indeed, there was ample evidence to support such a finding. He, as well as Macomber, had been in each other's company and had been drinking before the accident. The trooper detected a "strong odor of alcohol" about both Barry and Macomber at the scene. The jury could find in ...


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