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Horbal v. McNeil

Decided: November 19, 1974.

VERNA E. HORBAL, ADMINISTRATRIX AND ADMINISTRATRIX AD PROSEQUENDUM OF THE ESTATE OF VERNON ELLISON, DECEASED, PLAINTIFF-APPELLANT,
v.
LAVINA P. MCNEIL, DEFENDANT-RESPONDENT, AND ELIZABETH L. MCNEIL, DEFENDANT



For affirmance -- Chief Justice Hughes, Justices Jacobs, Mountain, Sullivan, Pashman and Clifford and Judge Conford. For reversal -- None. The opinion of the court was delivered by Conford, P.J.A.D., Temporarily Assigned.

Conford

This is an automobile intersection accident case in which the court entered judgment for the defendant motorist on a jury verdict of no cause for action, both drivers being found negligent. The Appellate Division affirmed, but with one judge dissenting because of what he regarded as reversible error in the trial court's charge on the effect of a violation of the traffic act. The plaintiff's appeal to this court is authorized solely by that dissent. R. 2:2-1(a)(2).

Plaintiff's decedent was driving a laundry van south through the intersection of Brinckerhoff Avenue and Kiawah Avenue in Freehold on a clear day when the van was struck on its right side in the intersection by an automobile driven by defendant proceeding east. There was credible evidence that the van was going at the rate of 30 miles per hour or more while approaching the intersection and that it did not slow down or change direction before the collision. The area was a residential district wherein the statutory

maximum speed rate is 25 miles per hour. N.J.S.A. 39:4-98, subd. b. The evidence was uncertain as to which vehicle entered the intersection first, but there was proof that defendant slowed down for a bump in the road before entering the intersection.

The trial judge charged the jury as to the content of several provisions of the traffic act including the legal speed limit in residential districts mentioned above; the requirement that a driver "drive at an appropriate reduced speed when approaching and crossing an intersection", N.J.S.A. 39:4-98; and that directing that a driver approaching an intersection yield the right of way to a vehicle which has entered the intersection, the driver on the right having the right of way if both vehicles enter the intersection at the same time. N.J.S.A. 39:4-90.

The difference between the Appellate Division judges arose over the following portion of the charge:

Now, we have a statute, and I'm about to read from some of those statutes here but before I do I want to caution the jury that if, in fact, you find there has been a violation of any of the statutes I'm about to read by either or both of these drivers, that such violation does not automatically make the violator negligent under our law.

Our law provides that if, in fact, a jury finds that there has been a violation or more than a violation, more than one violation, then the jury is required to treat that violation as being evidential.

The jury is required to consider that violation along with all of the evidence, other evidence in the case, and it may well be that after a comparison and consideration of all the evidence the violation may be the one thing you jurors may predicate negligence in this case. (emphasis added).

Plaintiff took exception to the word "required" in the charge on the ground that under our case law the jury had an option whether to consider a statutory violation as evidence of negligence and were not "required" to do so, as assertedly implied by the charge. The dissenting judge held the same view, adding he felt that the further reference to the possibility that the jury might find the violation to be the "one thing" on which negligence might be predicated

caused the jury erroneously to believe they must find negligence if they found ...


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