Gaulkin, Collester and Labrecque. The opinion of the court was delivered by Labrecque, J.A.D. Gaulkin, S.j.a.d. (concurring).
Defendants Robert Statman and Eat Mor Distributing Co. appeal from the granting of a new trial following a jury verdict in their favor, and from the entry of judgments based upon jury verdicts in favor of plaintiffs Evelyn Hacker and Marvin Hacker on retrial, and the denial of their subsequent motions for a new trial.
Although the record before us is lengthy, the facts are comparatively uncomplicated. On December 24, 1964, at approximately 5 P.M., defendant Statman, while operating an automobile owned by defendant Eat Mor in a westerly direction on Route 22, at a point a short distance west of the Union exit from the Garden State Parkway, collided with the rear of a vehicle driven by plaintiff Marvin Hacker in which Hacker's wife Evelyn and a Mrs. Hirschberg were passengers. Hacker testified that as he was proceeding in the inside (fast) lane at about 45 miles an hour, he glanced in his rear-view mirror and observed defendant's car some 400 or 500 feet to his rear. It was travelling downhill in the same lane at a speed of some 60-65 miles an hour when he observed it begin to skid, and then swerve into the right lane. Thereafter he heard the screeching of brakes and his car was struck in the rear by it. He testified that after the accident, in response to an inquiry as to what had happened, Statman told him that he had been up since early morning delivering Christmas presents, and was tired and in a hurry to get home. It had rained and it was wet and misty at the time. Both drivers proceeded on after identification and verification of licenses.
Statman testified that as he was proceeding westerly at about 8-10 miles per hour in the inside (fast) lane, he had observed Hacker's car ahead of him. He described the accident thus:
"The cars in front of me had stopped. I saw these stop lights go on so I proceeded to put my foot on the brake. There was brake failure. Just before, prior to the time of the collision, the brakes locked in the car. My vehicle skidded into the vehicle in front of me."
He asserted that he had travelled some 40 to 45 feet from the time he applied his brakes until he struck the Hacker car. Although he testified the Hacker car had stopped approximately three to five feet behind it, it was not driven into the car ahead. He did not recall making the statement attributed to him by Hacker but conceded that he had been out delivering Christmas presents to his various customers that day.
In support of the defense that a latent defect in his brake system had caused the accident, Statman testified that he had experienced trouble with the power brakes three times over a three-month period and that the booster had been replaced on each occasion, the last time one week before the accident. The repairs had been made by an employee of defendant Eat Mor.
The case was submitted to the jury as to Statman's negligence and Hacker's contributory negligence. The issue of Mrs. Hacker's contributory negligence was withdrawn from the jury's consideration and it was instructed that any negligence on Hacker's part would not be imputable to her.
During the course of the jury's deliberations at the first trial it sent out a note to the judge which read, in pertinent part, as follows:
"If Mr. Statman is not negligent, can we award damages for the car only and not be contradictory in feeling that there should be no other award made or can we make any award for medical expenses and not declare Mr. Statman negligent."
It was instructed that the amount of damages for the car was not in issue, and that it could not award medical expenses in case Mr. Statman was found not to be negligent. It thereupon resumed deliberating and returned a verdict of no cause for action.
On plaintiffs' motion the verdict was set aside and a new trial ordered. At the second trial the jury returned a verdict of $40,000 each in favor of Mrs. Hacker and her husband.
Defendants' first point challenges the order granting a new trial. They argue that the trial judge misconceived his duty in passing upon the motion, that he was restricted to canvassing the record for the sole purpose of determining whether reasonable minds might consider the evidence as adequate to support the jury's verdict, and since there was testimony in the case which would support the verdict, his action amounted to a manifest denial of justice which requires that it be set aside.
On a motion for a new trial on the ground that the verdict is contrary to the weight of the evidence, the trial judge may not substitute his judgment for that of the jury. He is required to canvass the record to determine whether reasonable minds might accept the evidence as adequate to support the jury's verdict. Kulbacki v. Sobchinsky, 38 N.J. 435, 445 (1962). But the presence of the mistake, passion, partiality or prejudice referred to in the rules may be inferred from factors other than the weight of the evidence. Here the trial judge determined:
"* * * the jury was prejudiced against Mrs. Hacker, wanted to give her nothing, but did desire to 'reimburse' Mr. Hacker for his expenses. Since the Court had ruled that Mrs. Hacker had not been contributorily negligent, the jury probably realized that if it found Statman negligent, that it would be compelled to award damages to Mrs. Hacker. Apparently, this attitude was reflected in its verdict of 'no cause for action.'
The verdict appeared to result from a balancing of the jury's determination not to award Mrs. Hacker damages against its desire to
be fair and 'reimburse' Mr. Hacker. The Court is of the opinion that such a decision was based on prejudice and partiality and not on a weighing of the evidence as to the ...