For reversal -- Chief Justice Hughes and Justices Mountain, Sullivan, Pashman, Clifford, Schreiber and Handler. For affirmance -- None. The opinion of the Court was delivered by Sullivan, J. Clifford, J., concurring. Clifford, J., concurring in the result.
Certification was granted, 71 N.J. 513 (1976), in this passenger-taxicab accident case to review an opinion of the Appellate Division*fn1 which set aside judgments as to liability and damages in favor of plaintiffs and ordered a new trial as to both issues. For reasons hereinafter set forth, we reverse the Appellate Division ruling and reinstate the judgments.
On April 1, 1971, plaintiff Irene Stec and her eight-year-old daughter were passengers in a taxicab owned by defendant Elijah Richardson and being operated by defendant Milton Atkinson. They had entered the cab after leaving a doctor's office in Perth Amboy and were being driven to their home which also was in Perth Amboy. After traveling about a block, the vehicle started to shimmy. The driver stopped, got out of the cab and walked around it. He then reentered the cab, and said there was nothing wrong and continued on. After proceeding a short distance the driver stopped for another passenger. The accident happened when the cab started up again, increased speed and made a turn into another
street. Suddenly the right front wheel "flew off" causing Irene Stec to be pitched forward, then backward, and to hit her head on the ceiling of the vehicle.
She filed suit against the owner and the operator of the taxicab for her alleged injuries which included a claim of substantial aggravation of a preexisting psychiatric condition. Her husband joined per quod. Plaintiffs also joined Angelo Laureano, t/a Angelo's Friendly Mobile, as a party defendant based on information given to plaintiffs by the other defendants that the wheel had come off the cab due to negligent and careless servicing of the vehicle by this party.
A bifurcated trial was ordered. At the trial of the issue of liability Irene Stec, the only witness for plaintiffs, testified to the facts of the accident heretofore recited. After plaintiffs rested, the co-defendant, Angelo Laureano, was called as a witness by counsel for defendants Richardson and Atkinson. Laureano testified that he did not begin to do business as Angelo's Friendly Mobile until June 3, 1971 and prior to then had been employed as a machine operator for a meat container firm. No other testimony was presented by or on behalf of defendants Richardson and Atkinson.
Based on the foregoing, the trial court dismissed all claims asserted against Angelo Laureano, t/a Angelo's Friendly Mobile. Also, on plaintiffs' motion, the court granted judgment on the issue of liability in favor of plaintiffs and against defendants Richardson and Atkinson. In so doing the trial court noted the duty of a high degree of care imposed on a common carrier of passengers. It concluded that, under these circumstances, there was an obligation and a duty on the part of the carrier "to come forward and to explain it away" and that it had not done so.
A trial on the issue of damages was thereafter held before another judge and jury, the basic issue being the causal relation between the accident and Irene Stec's subsequent psychiatric disorders. The trial resulted in a jury verdict in favor of Irene Stec for $35,500 and in favor of her husband
for $12,000. A motion for a new trial charging excessive verdict was denied by the trial court.
On appeal by defendants, the Appellate Division held that the facts of the case were such that the doctrine of res ipsa loquitur applied, but that such application should not have resulted in a "directed verdict" for plaintiffs. Instead, the Appellate Division concluded that the permissible inference of negligence which arose from application of the doctrine, created only a jury issue of liability and that it was error for the trial court to have taken this issue away from the jury. It therefore reversed the judgment of liability in favor of plaintiffs and ordered a new trial on liability. At the same time and without any statement of reasons therefor, it also reversed the award of damages and ordered a new trial on this issue as well.
At the trial on the issue of liability, counsel, as well as the court, referred to plaintiffs' case as being controlled by the doctrine of res ipsa loquitur. However, this was an underestimation of the quality of plaintiffs' proofs. The doctrine of res ipsa loquitur ordinarily comes into play to aid a plaintiff who does not have direct evidence of negligence on the part of a defendant. All that can be shown is that a mishap occurred involving some instrumentality under the control of the defendant; that the mishap ordinarily bespeaks negligence and there is no indication that the mishap was a result of plaintiff's own act or neglect. Kahalili v. Rosecliff Realty, Inc., 26 N.J. 595, 606 (1958). In such case a permissible inference ...