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La Mandri v. Carr

Decided: March 25, 1977.

MICHAEL LA MANDRI, PLAINTIFF,
v.
ERNESTINE CARR, ELLA LINDSEY AND JUNE GIOVANNI, DEFENDANTS. JUNE GIOVANNI, PLAINTIFF-APPELLANT, V. ELLA J. LINDSEY AND ERNESTINE CARR, DEFENDANTS-RESPONDENTS



Matthews, Seidman and Horn. The opinion of the court was delivered by Seidman, J.A.D.

Seidman

On June 22, 1972, at about 1:35 P.M., an automobile operated by June Giovanni collided with another owned by Ella J. Lindsey and operated by Ernestine Carr. Both vehicles had been proceeding in a southerly direction on the Garden State Parkway in New Shrewsbury, Monmouth County. Michael La Mandri, a passenger in the Giovanni automobile, filed a negligence action against Miss Giovanni and the owner and operator of the other vehicle to recover damages for his personal injuries. Miss Giovanni also brought suit against the latter, claiming injuries and property damage. The actions were consolidated. Miss Giovanni will be referred to hereafter as plaintiff; Miss Carr, as defendant.

At the trial, because his medical witness was unavailable, La Mandri agreed to be bound as to liability by the outcome

thereof, reserving for a later date the admeasurement of his damages. Negligence on the part of defendant was conceded, so that the trial proceeded only on the issues of plaintiff's negligence and damages. The complaint was dismissed as to Mrs. Lindsey. The jury returned a verdict in favor of defendant upon a finding that plaintiff was contributorily negligent, and judgment was entered accordingly.

Plaintiff appeals, contending that (1) the trial judge erroneously instructed the jury that a violation of N.J.S.A. 39:4-89 was negligence; (2) the verdict was against the weight of evidence; (3) she should have been permitted to testify about her property damage claim; (4) the issue of contributory negligence should not have been submitted to the jury; (5) there was a question whether contributory negligence was a substantial factor in causing the accident; (6) defendant should not have been allowed to object to certain testimony of the police officer, and (7) plaintiff's physician should have been permitted to render his opinion as to the permanency of her injuries.

On the issue of plaintiff's contributory negligence, the trial judge instructed the jury to consider whether she had been guilty of a violation of N.J.S.A. 39:4-89, i.e. , whether at the time of the accident she was following "another vehicle more closely than is reasonable and prudent, having due regard to the speed of the preceding vehicle and the traffic upon, and condition of, the highway." He further charged, in accordance with Dolson v. Anastasia , 55 N.J. 2 (1969), that a violation of the statute was negligence and not merely evidence thereof.

It is not in dispute that on the day in question both cars were proceeding south on the Garden State Parkway. It was raining and the roadway was wet. According to plaintiff's version of the accident, substantially corroborated by her passenger, as she was travelling in the right-hand lane at a speed of about 40 miles an hour defendant's car passed her on the left. Its speed was estimated to be 60 to 65 miles an hour. When defendant's car was approximately

100 yards ahead it suddenly "lost control and was spinning around." It spun "both to the right, to the left, toward the center." Plaintiff steered to her left to get out of the way. She was "partially on the shoulder and the left lane and I stopped because I was afraid to go over that shoulder." The other car, she said, "came north up the Parkway" and in the course of its last spin, its rear struck the front of plaintiff's automobile.

Defendant's explanation was that after overtaking plaintiff's automobile she saw a puddle of water and applied her brakes. The car slid into the "opposite lane." She said further:

The impact, she added, took place between the fast and the middle lanes. On cross-examination she said that when she first saw plaintiff's car it was two to three car lengths away, because "I had passed her." When the skid occurred, she said, her speed was between 55 and 60 miles an hour. She denied spinning around or moving in a northerly direction during the course of the skid.

The investigating state trooper testified to what both drivers told him at the scene. Defendant, he related, said that she was going south in the right lane at about 55-60 miles an hour when her car started to slide; she took her foot off the gas and applied her brakes; and the car skidded to the left, then to the right, spun around and went to the left, where she was hit. Plaintiff told him that she was "[t]ravelling in the right lane about 100 yards to the rear of vehicle Number 1 when she [Carr] ...


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