On appeal from the Superior Court, Law Division, Camden County.
Goldmann, Lewis and Matthews. The opinion of the court was delivered by Goldmann, P.J.A.D. Matthews, J.A.D. (dissenting).
Pursuant to leave granted, plaintiffs appeal from a Law Division order dismissing their complaint against defendant Trooper Ferry in their action to recover damages resulting from a rear-end collision.
On November 29, 1966, at about 9 A.M., Troopers Ferry and Miller were conducting a radar operation on Route 73 (northbound) in Voorhees Township, Camden County. Miller was operating the radar machine some 0.2 miles to the south of where Ferry was acting as interceptor. Traffic was light, visibility clear, and the road surface dry. Miller radioed Ferry to stop a white Cadillac going north in his direction. Ferry observed two vehicles approaching in the slow lane. The car in front, owned by plaintiff John Czyzewski and driven by his wife Bertha, was some distance
ahead of the white Cadillac driven by defendant Schwartz and loaned to him by defendant Porter's Body Shop, Inc., while his car was being repaired.
In the affidavit filed by Ferry in support of the motion to dismiss the complaint, he stated that
After the Czyzewski car had traveled about 20 feet, it was struck in the rear by the Cadillac. Ferry averred that he was in no way negligent nor did he improperly or incorrectly signal Mrs. Czyzewski so as to cause her to stop immediately; rather, she misinterpreted his signal and stopped her car abruptly. (We note here that Ferry signaled from where he was standing in the fast lane.)
In her affidavit opposing the Ferry motion Mrs. Czyzewski stated that she was traveling at a moderate rate of speed when Ferry motioned with his left hand and thumb for her to pull over, and when she did so her car was struck from the rear. At no time was her mouth agape and both hands off the steering wheel, and at no time did she point with her hands to herself, as alleged in the Ferry affidavit. As in her complaint, she contended that the trooper was negligent and improperly signaled her, thereby creating an emergency situation which required her to stop immediately, with the resulting rear-end collision.
Defendant Schwartz also filed an affidavit in which he said that as the two cars approached, the trooper suddenly began motioning with his arms. He made the same motion at the same time to both drivers, but Schwartz thought that
the trooper meant for the Czyzewski car to stop, since he started motioning while that car was still approaching him. There was no warning of an impending stop; Schwartz could not pass to the left because the trooper was standing in the fast lane; and although he applied his brakes, the Cadillac ran into the stopped Czyzewski car.
Mrs. Czyzewski had sued to recover damages for personal injuries sustained, joining Schwartz, Porter's Body Shop, Inc., and Ferry, "of the New Jersey State Police," individually, jointly, severally and/or in the alternative. Her husband sued per quod and for property damage. Schwartz answered, denying negligence and setting up the defenses of contributory ...