For affirmance -- Chief Justice Weintraub and Justices Jacobs, Francis, Proctor, Hall, Schettino and Haneman. For reversal -- None. The opinion of the Court was delivered by Francis, J.
[57 NJ Page 498] This action arises out of an automobile collision that occurred in Fairfield, N.J. on December 12, 1966, at approximately 10:30 P.M. at a highway intersection where the movement of vehicles was controlled by traffic lights. Plaintiff Julio Cestero, the driver of one car, and members of his family who were passengers in his car sued defendant Jennie Ferrara, the driver of the other car, to recover compensation on account of property damage, personal injuries and expenses suffered by them in the accident. Defendant Jennie Ferrara counterclaimed against Mr. Cestero seeking a recovery for personal injuries, medical expenses and other
losses, including property damage to her car. After trial, the jury brought in a verdict of $60,000 in favor of defendant Ferrara against the plaintiff Cestero on the counterclaim and a verdict of no cause of action on the claims of the various plaintiffs. Following denial of a motion for a new trial, Cestero sought a review in the Appellate Division where the judgments entered on the verdicts were affirmed. Cestero v. Ferrara, 110 N.J. Super. 264 (App. Div. 1970). We granted plaintiff Cestero's petition for certification. 56 N.J. 476 (1970).
A number of grounds for reversal were raised in the Appellate Division. They were disposed of adversely to Cestero in the opinion cited above, and although we agree with the affirmance, we find it advisable to deal somewhat differently with an evidence problem which constituted a major basis for the appeal.
The liability issue in the case was a relatively simple one. As already noted, movement of motor vehicles at the intersection in question was controlled by traffic lights. Each driver claimed the light was green as his or her car entered the intersecting street. It seems obvious from the record that the verdict would go to the driver in whose favor the jury decided that basic issue.
The testimony of Mrs. Ferrara and Mr. Cestero was diametrically opposed. Each one claimed the favorable green light; each produced a so-called disinterested witness who agreed with the claim of the party who produced him. During the trial, the record of Mrs. Ferrara's hospitalization and treatment following the accident was received in evidence. Plaintiff objected to the portion thereof which set forth as part of the patient's history her statement as to cause of the accident. The objection claimed that the statement was self-serving and hearsay and should be excluded. The trial court disagreed and admitted the entire record. The criticized portion says:
"Pt. [patient] stopped for red light, started up on green light and got hit * * *."
Some further reference to the facts is necessary to facilitate discussion of the problem. As already noted, the accident took place at approximately 10:30 P.M. on December 12, 1966. Mrs. Ferrara was badly hurt and had to be transported by ambulance to the Mountainside Hospital in Montclair. She was carried into the emergency room at about 11:00 P.M. She testified that she did not remember anything after the accident until she was "in the hospital." Nor could she say how long she was in the hospital before she remembered "anything." In stating the "first thing" she remembered she said "Well, I opened my eyes, and I looked up and * * * saw a doctor in front of me." She started to say, "I says to the doctor * * *," but she was instructed not to tell that. She was in very bad pain when she saw the doctor.
On admission to the emergency room, it was obvious that Mrs. Ferrara was severely injured. The nurse's note says "right leg deformed." Apparently, Dr. Robert Greene, an orthopedist, was called immediately and arrived in a very short time, although the exact time of his appearance was not recorded. The inference is that he was the doctor she saw when she "opened her eyes." His handwritten notes on the chart record his first observations. He found a grossly deformed right femur with "severe pain in any motion of the leg." The leg was "tender over the entire shaft" and there was "gross shortening." The patient had a small laceration of the scalp in the right temporal region.
When the doctor recorded the statement about the accident, he noted further that she was complaining of pain in the right thigh, right shoulder and head; also that she believed "she was unconscious, but has no gross loss of memory other than this." After x-rays of the patient's head, shoulder and right hip were taken and a gross neurological examination made, the doctor felt she could withstand the urgently necessary operation on her femur. Accordingly, she was removed to the operating room and the surgery performed. The hospital record notes that she was unable to sign the
authorization for the surgery before being taken to the ...