Halpern, Crahay and Wood. The opinion of the court was delivered by Halpern, P.J.A.D.
[134 NJSuper Page 100] Plaintiff Jacqueline Goss appeals from a final judgment, entered on a jury verdict, in favor of defendant, and from the denial of her motion for a new trial.
The relevant facts are not in serious dispute and will be briefly set forth. Defendant, a 17-year-old college student, went skiing at Mad River Glen, in Vermont, on February 21, 1972. He testified that he had done a limited amount of cross-country skiing in New Jersey, but had never done any "downhill skiing as such." There is nothing in the record to indicate whether he had ever received any skiing instructions. On the day in question he had walked on his skiis about one-fourth of the way up the beginner's slope and then started skiing down. During his descent he made a left turn toward the ski lodge and a car parking lot. When he was about 100 feet away from plaintiff, and at a time when he had lost control of his skiis, he saw plaintiff standing in the parking lot but could not avoid running into her. As he put it:
Plaintiff testified she was a ski patrol volunteer and a first aid advisor. She was standing with a friend in the parking lot, near a car, when at her friend's warning she turned and saw defendant almost on top of her. She attempted to get out of his way but was unable to do so.
We indicate at the outset that counsel have agreed the law of Vermont is applicable to this incident, and that Vermont law in this negligence suit is the same as New Jersey's. We agree with that stipulation, particularly with respect to the duty of care owed by a 17-year-old to another. See Johnson's Adm'r v. Rutland R. Co., 93 Vt. 132, 106 A. 682 (Sup. Ct. 1919); Bush v. N.J. & N.Y. Transit Co., Inc., 30 N.J. 345 (1959).
The issue in this case, as we see it, which is presented as plain error, is whether the trial judge properly charged the jury with respect to the duty of care owed plaintiff by defendant
under the existing facts. We find plain error to exist and reverse.
At the outset of the charge the trial judge properly instructed the jury that they must accept the law of the case as he submitted it to them, irrespective of their feelings about the law, or even if they disagreed with it. After instructing on the burden of proof, he defined negligence and proximate cause. In defining negligence with respect to defendant he instructed the jury as follows:
The law says that as far as one under 18 is concerned -- 18 or younger -- we don't exact from him or her the same degree of care that we exact from an adult. We expect what we call an infant, which is anyone under 18 -- we exact that degree of care which a reasonably prudent person of that age would have exercised under the same or similar circumstances. So, as I said to you, Steven Allen on this date was 17 years old, and the law exacts from him the standard of care that a 17 year old would exercise under the circumstances.
In reviewing the testimony of defendant the trial judge again said:
Mr. Allen, on the other hand, says there is no question that "I came in contact with her, but I exercised reasonable care as a 17-year-old beginner skier. I didn't get on the T-bar and go all the way to the top and come down the slope. I walked up." I don't quite know how he did it, but anyway he says he walked up about 30 feet up the slope, halfway, and started down, and he said somehow or other he managed to make that left turn and he saw Miss Goss some hundred feet away and he knew he was out of control, but he also says, "Like any 17 year old or like any beginner skier or both -- any beginning 17-year-old skier -- I tried to regain control. At the last minute I realized that I couldn't control my skis. I shouted too late; there was contact," and he says, "I exercised that degree of care that might reasonably be expected of a 17-year-old beginner skier; that if there was an accident, it wasn't my fault."
Following the trial judge's charge, and after a side bar conference was held (the content of which is not disclosed by the ...