Allcorn, Kole and Ard. The opinion of the court was delivered by Ard, A.j.s.c., Temporarily Assigned.
Plaintiff Howard Burd, Jr., as general administrator and as administrator ad prosequendum of the estate of his son David, appeals from a judgment for defendant in an action for damages for decedent's injuries and wrongful death on the issue of liability and the trial judge's subsequent denial of a new trial. Howard Burd, Jr., and his wife Dolores also appeal from an order granting summary judgment to defendants on their individual claims of damage for mental suffering and loss of consortium contained in the third and fourth counts of the complaint.
The verdict was entered by the trial judge upon the jury returning special written findings determining the defendant
driver guilty of negligence and the decedent pedestrian guilty of contributory negligence.*fn1
The accident occurred on May 13, 1971 between 9:00 and 9:15 P.M. on Willow Grove Street at or near Hatchery Road, Hackettstown, New Jersey. Willow Grove Street runs north and south and Hatchery Road proceeds downhill in an easterly direction from Willow Grove Street to the Musconetcong River. Willow Grove Street measured 20 feet in width in addition to blacktop shoulders on each side approximately five feet in width. The street was divided by a solid yellow line in the center of the road. There were no sidewalks in the area. Hatchery Road measured approximately 19 feet wide at the Willow Grove Street intersection. There were no crosswalk lines in Willow Grove Street at or near Hatchery Road. Private residences lined Willow Grove Street on both sides, and there was a lighted street light on the east side of Willow Grove Street at the Hatchery Road intersection and another approximately 400 feet north on Willow Grove Street. Willow Grove Street was governed by two signs indicating a speed limit of 25 miles an hour. One of the signs was just south of the impact area.
At about 7 P.M. on May 13, 1971 decedent, a 15-year-old boy, left his home on Willow Grove Street to fish at the bottom of Hatchery Road. The Burd residence was on the westerly side of Willow Grove Street and north of the Hatchery Road intersection. After fishing approximately two hours he walked up Hatchery Road accompanied by 14-year-old Ronald Facezekas. Upon reaching the easterly side of Willow Grove Street they parted, with Ronald turning left in a southerly direction and decedent turning right to proceed in a northerly direction, crossing the mouth of Hatchery Road on the easterly side of Willow Grove Street. As Ronald proceeded
to his home, which faced Willow Grove Street on the southeast corner of the Hatchery Road intersection, he saw two cars heading north on Willow Grove Street, about five feet apart and "going pretty fast." He then heard a light thump but proceeded into his driveway. He did not see the accident and apparently was unaware it had occurred until later.
Defendant driver, alone in his vehicle, was proceeding north on Willow Grove Street at a speed he alleged to be 25 to 30 miles an hour. He testified he did not see decedent but heard the noise of an impact to his left front and "found my car headed for a tree on the opposite side of the road where I shouldn't have been traveling." He came to a stop on the southbound lane with the "nose pointed completely off the road." Decedent's body was found on the southbound shoulder of the road about 12 feet south of a catch basin in front of the Burd residence. The police testified the body was about 142 feet north of the street light at Hatchery Road and 270 feet south of where defendant stopped his car. An unlighted lantern (which went out while decedent was fishing) was found in a badly damaged condition under a hedge on the westerly side of Willow Grove Street 140 feet south of decedent's body. Ronald Facezekas testified that decedent was carrying the lantern at the time they parted. In visualizing the three locations, one can draw a line from the lantern to the body to the vehicle of approximately 410 feet along the westerly shoulder of Willow Grove Street.
Rudolph Vercruyssen testified he was alone in another car following his brother as they proceeded north on Willow Grove Street. He did not see decedent or the impact but observed two white objects fly over his brother's car. He subsequently identified these objects to be decedent's sneakers, located slightly south of the body in the middle of the street. Rudolph surmised that his brother had hit something upon observing Fernand's car behave erratically by turning clockwise and then counter-clockwise, heading off the road
and stopping. Rudolph pulled to a stop on the right side of the road across from decedent.
There was no eyewitness testimony as to the location of where the boy was struck or his path of travel immediately prior to the accident.
During the trial plaintiffs, relying on Evid. R. 49, made an offer of proof through the testimony of Burd as to his son's habit and custom of exercising care while crossing Willow Grove Street. Burd testified:
He always looked for oncoming traffic. He looked in both directions, and he always walked facing the traffic. * * * By facing the traffic? I mean that he walked on the shoulder facing the traffic coming toward him, so that he would be looking at the cars as they are coming toward him.
Q How many times did you see him come up Hatchery Road to Willow Grove and ...