On appeal from Superior Court of New Jersey, Law Division, Bergen County.
Michels and Dreier. The Opinion of the Court was delivered by: Dreier, J.A.D.
[193 NJSuper Page 606] Plaintiff appeals from a Law Division judgment in favor of defendants entered after a jury verdict apportioning plaintiff's
negligence at 80% and the defendant truck driver's negligence at 20%. Defendants are the corporate owner, lessee and individual operator of the tractor-trailer with which plaintiff's Chevette collided. The accident occurred at a "Y" intersection. Plaintiff was proceeding down the left arm of the "Y", Harrington Avenue, which was controlled by a stop sign as one approached the intersection. The tractor-trailer driven by defendant J.E.K. was on the through street, Knickerbocker Road, proceeding downhill on the other arm of the "Y", intending to continue along the stem of the "Y". The accident occurred in heavy rush hour traffic on a wet and foggy morning, April 27, 1979.
Plaintiff testified that she stopped at the stop sign for a considerable period of time because of her unfamiliarity with the area, and slowly made a left turn (according to a County Engineer the angle of the intersection was just over 142 degree). Plaintiff further testified that the way appeared clear and when she "was in the south position just ready to start going south, all of a sudden, this mountain came over me, and that's all I remember." Defendant J.E.K. testified that because of the rain he was travelling at a speed of only 30 to 35 miles per hour and as he approached the intersection he slowed the truck down to 20 to 25 miles per hour, since he knew it was a "crazy" intersection. He saw plaintiff's car at the intersection and that "for some reason the Chevette came over onto this [his] lane and cut right over here towards the curb." He took evasive action by applying his brakes and swinging to the left so that he would not hit plaintiff head-on. He thought he had missed the Chevette entirely until, after the accident, he found the driver side of plaintiff's car embedded into the lower passenger side of his tractor, a fact corroborated by a newspaper photograph entered into evidence at the trial.
Plaintiff has urged a reversal based upon four alleged errors. First, defendants' incorrect answers to interrogatories prejudiced plaintiff; second, the court's charge was inadequate; third, plaintiff was improperly precluded from presenting evidence
of defendant J.E.K.'s prior criminal conviction, and fourth, the court failed to give reasons for denying plaintiff's motion for a new trial. We determine that the first and third issues do not substantiate a claim of error, and that the second and fourth, although properly noting trial errors, were insufficient -- considering the posture of this case before the jury -- to be reversible errors under R. 2:10-2.
In defendants' answers to plaintiff's interrogatories defendant J.E.K. denied giving any statement with respect to the accident, and knowing of any photographs other than those taken by the police. During his direct examination he testified that he gave the police a verbal statement and also gave a statement to a representative from his employer's company who took him to the scene because he wanted to take pictures of the scene. He was cross-examined concerning the statement and his apparently contrary interrogatory answers. Plaintiff's counsel thus used these apparent inconsistencies to impeach J.E.K.'s credibility.
Plaintiff now argues that had these photographs been produced they may have lead to a definitive establishment of the point of collision, which she contended was in her southbound lane and defendant J.E.K. contended was in the northbound lane. This argument has two flaws. First, the photographs were taken approximately three hours after the accident, and no foundation could be laid as to whether there had been a substantial change in the condition of the intersection after the accident. Neither the parties nor the photographer could have known whether the intersection had been swept or whether debris, if it were shown, had been either moved by passing vehicles or in fact may have come from other sources. Therefore, there was an unlikelihood that these photographs, even if located, would have been admissible. A second and more persuasive argument is that plaintiff never requested an adjournment to have the photographs searched for and produced and, if necessary, the photographer deposed, all of which
could have been accomplished in a few hours' time. At most, a one day adjournment would have been necessary. Instead, plaintiff elected to use the newly revealed information to impeach defendant's credibility. Having made this selection, plaintiff will not be permitted at this late date to urge as error the failure of the trial judge to direct production of the alleged photograph or statements. Plaintiff's counsel made a tactical trial decision and will be bound by it. Cf. State v. Harper, 128 N.J. Super. 270, 276-277 (App.Div.), certif. den. 65 N.J. 574 (1974).
As to the adequacy of the court's charge, we agree with plaintiff that there were substantial deficiencies. The trial court did charge the jury generally as to the duties owed in a negligence case. Plaintiff's counsel objected specifically to the failure to charge the specific duties owed with respect to the drivers of automobiles, the duty to make specific observations where one's view is obstructed or where vision is impaired and a specific charge on the responsibilities arising at an intersection controlled by a stop sign. Although all of the requested charges stated valid legal principles, they need not have been charged in the wording suggested by plaintiff. For example, as to the stop sign, the duty of defendant was noted in the requested charge only to be a "continuing duty to exercise due care." Had this charge been given, it would have been, we assume, coupled with a specific charge under N.J.S.A. 39:4-144 which not only required plaintiff stopping at ...