On appeal from Superior Court of New Jersey, Law Division, Union County.
Fritz, Botter and Ard. The opinion of the court was delivered by Fritz, P.J.A.D.
This is an appeal by the operator of an automobile from a judgment in favor of a pedestrian whom he struck, in an action in which the cause of action accrued prior to the enactment of our comparative negligence statute. See N.J.S.A. 2A:15-5.1 et seq. The principal concern of appellant, defendant below, involves a portion of the judge's charge focusing on proximate cause and exculpation of plaintiff's contributory negligence by defendant's subsequent negligent conduct. He characterizes this charge as an inaccurate and incomplete statement of the law capable of misleading the jury and constituting reversible error. We agree.
Plaintiff testified that one early evening, after dark, she was sitting on her front porch when a fight among 20 to 25 "kids" broke out in front of her house and spilled over on to her porch. When her peace entreaties failed, she went into her home to call the police. Her granddaughter aborted this mission by advising that the police were already across the street. Apparently a police car was parked on the far side. Plaintiff, reporting that she was going "[t]owards the cop's car * * * to ask him to try and stop the kids," testified that before she started across the street, she "went up and I looked. I didn't see no car coming." She then described the accident, involving a car coming from her right as she crossed, thusly:
A Then just as I got halfway in the street or across the white line -- so I was going -- I made but three more steps, and then I saw this car and I throw up my hands. I thought maybe he was going to let me pass.
Q What part of the car hit you?
Q Now, how far across the street had you gotten when the car hit you?
A I had gotten three or four feet across from the white line.
Q On the other side of the white line?
She said she was wearing a blue dress and a pink and yellow apron.
A portion of her earlier deposition was read. In it she stated that she had seen defendant's car just after she crossed the white line; that it was then on the other side of an intersection at which a traffic light was situated, and that she "thought he was going to give me ...