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Pekter v. Price

Decided: December 23, 1985.

MORTON PEKTER AND MARILYN PEKTER, HIS WIFE, PLAINTIFFS-APPELLANTS
v.
JANE MARIE PRICE AND RUTH L. PRICE, DEFENDANTS-RESPONDENTS



On appeal from Superior Court, Law Division, Atlantic County.

King, Simpson and Scalera. The opinion of the Court was delivered by Simpson, J.A.D.

Simpson

[206 NJSuper Page 356] Plaintiff Morton Pekter, a roller skater injured in a collision with a car driven by defendant Jane Price, appeals from a judgment entered in favor of defendant following a jury verdict finding him 80% negligent and defendant 20% negligent, and an

order denying his motion for judgment notwithstanding the verdict or for a new trial. Plaintiff testified that he was skating in the parking lane in the direction of traffic that had two other driving lanes in the same direction. He was wearing prescription sunglasses with a rearview mirror attached thereto, but never saw defendant's car before the accident occurred. He was not skating on the sidewalk because the expansion cracks on the concrete "make it very rough and very dangerous." Defendant testified that plaintiff was coming towards her in the parking lane and then skated into the passenger side of her car, which was in the middle lane, and damaged the antenna and right hand door of the car. On this appeal plaintiff contends that:

POINT I.

THE TRIAL COURT WAS IN ERROR WHEN IT DENIED PLAINTIFF'S APPLICATION FOR A NEW TRIAL.

POINT II.

THE JUDGE WAS IN ERROR WHEN HE CHARGED A VIOLATION OF A MOTOR VEHICLE STATUTE (N.J.S.A. 39:4-34) . . . AND IN DEFINING THE PLAINTIFF AS A PEDESTRIAN UNDER THE ACT BY REFERENCE TO N.J.S.A. 39:4-32 [ sic -- apparent reference is to 39:1-1].

In Point I, plaintiff asserts that the verdict was against the weight of the evidence and that the judge's charge was defective in failing to include "the doctrine of last clear chance" or "sudden emergency." With respect to the weight of the evidence, our review is limited by R. 2:10-1 and Dolson v. Anastasia, 55 N.J. 2, 6-8 (1969). Our canvass of the record, with due regard to the trial judge's "feel of the case" satisfies us that it does not clearly appear that there was a miscarriage of justice under the law. Except as set forth in Point II, there was no objection to the charge and there was no request to charge last clear chance or sudden emergency. Under these circumstances, we are also satisfied that the judge's charge as to negligence and proximate cause was sufficient and there was no error in not, sua sponte, charging these other doctrines of doubtful applicability to the propositions of fact asserted in this case. Cf. State v. Green, 86 N.J. 281 (1981); Latta v. Caulfield,

79 N.J. 128 (1979); Harpell v. Public Service Coordinated Transport, 20 N.J. 309 (1956); Pangborn v. Central Railroad Co. of N.J., 18 N.J. 84 (1955); Roberts v. Hooper, 181 N.J. Super. 474 (App.Div.1981).

As to Point II, the judge instructed the jury that under N.J.S.A. 39:1-1 "'Pedestrian' means a person afoot" and by judicial interpretation includes "a pedestrian even though using roller skates." He also read the jury the third and fourth sentences of N.J.S.A. 39:4-34:

On all highways where there are no sidewalks or paths provided for pedestrian use, pedestrians shall, when practicable, walk only on the extreme left side of the roadway ...


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