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Polistina v. Polistina

Decided: March 4, 1982.

THERESA POLISTINA AND ANNA INGRASSIA, PLAINTIFFS-APPELLANTS,
v.
JOHN POLISTINA AND LEONARD STETZ, DEFENDANTS-RESPONDENTS



On appeal from the Superior Court, Law Division, Ocean County.

Allcorn, Francis and Morton I. Greenberg. The opinion of the court was delivered by Morton I. Greenberg, J.A.D.

Greenberg

[183 NJSuper Page 292] This matter comes on appeal after the trial judge denied plaintiffs' motion for a new trial following the return of a jury

verdict against them in a civil damage action arising from an automobile accident. The principal issue on appeal is whether the trial judge committed plain error in his charge and in the interrogatories he framed for the jury on which they returned their verdict. R. 2:10-2; R. 4:39-1.

The germane facts and procedural history of the action are not complicated. At about 2:20 a.m. January 14, 1979 defendant John Polistina was operating an automobile on Route 9 near Beachwood Boulevard in Beachwood, New Jersey. Plaintiffs Theresa Polistina, his wife, and Anna Ingrassia, her sister, were passengers in the vehicle. Unfortunately, as a result of the vehicle going through water, his engine got wet and stalled. Consequently, the automobile stopped. John Polistina tried without success to get the motor running. He then got out of the vehicle to obtain signal flares from his trunk. Plaintiffs remained in the car. Before the flares were set a vehicle driven by defendant Leonard Stetz struck the Polistina vehicle, causing personal injuries to plaintiffs. Though it is undisputed that the Polistina vehicle was stopped when hit, there is some question as to how far it intruded onto the traveled portion of the road and how much of it was on the shoulder.

Plaintiffs subsequently brought a single civil damage action against John Polistina and Leonard Stetz. The case was tried on both liability and damages. At trial Theresa Polistina testified that the headlights of the Stetz vehicle had been visible for some distance and that she stated at that time, obviously to Anna Ingrassia, "look at this maniac at a speed." The court sustained an objection to this testimony. Following the presentation of all testimony plaintiffs moved to strike issues relating to their negligence. This motion was denied. The trial judge subsequently charged the jury on all issues. The case was submitted on interrogatories and the following verdict was returned:

AS TO LIABILITY

1. (a) Was the driver John Polistina guilty of negligence which was a proximate cause of the accident that occurred?

Yes X No

(b) If the answer to the above question is "yes", was such negligence a proximate cause of the injuries?

Yes X No

2. (a) Was the driver Leonard P. Stetz guilty of negligence which was a proximate cause of ...


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