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Burdzy v. Cooney

Decided: February 4, 1987.

EDWARD BURDZY AND KRISTINE BURDZY, PLAINTIFFS-APPELLANTS,
v.
LOUISE COONEY, DEFENDANT-RESPONDENT



On appeal from the Superior Court of New Jersey, Law Division, Hunterdon County.

Michels and O'Brien. The opinion of the court was delivered by Michels, P.J.A.D.

Michels

Plaintiffs Edward Burdzy and Christine Burdzy appeal from a judgment of the Law Division entered in favor of defendant Louise Cooney on a molded jury verdict in this personal injury automobile negligence action.

The proofs essential to resolve the issues raised on this appeal are not in dispute. The accident occurred at the intersection of Routes 165 and 29 in Lambertville, New Jersey. Plaintiff Edward Burdzy was travelling south on Route 165 and defendant was travelling south on Route 29. Route 29 is controlled by a yield sign where it merges with the southbound lanes of Route 165. Thus, traffic travelling south on Route 29 is required to yield before entering the flow of southbound traffic on Route 165. A short distance further south on Route 165, beyond the point where the southbound lanes of that highway merge with Route 29, there is a break or cut out in the median of Route 165 through which drivers heading south may make a U-type turn in order to change direction and head north on Route 165.

Defendant, who was travelling south on Route 29, slowed down but did not stop at the yield sign before entering Route 165 South. She intended to proceed across both southbound lanes of Route 165 to the cut out in the median and then turn

onto Route 165 heading north. However, before plaintiff reached the break in the median, the accident occurred.

Plaintiff Edward Burdzy instituted this action to recover damages for the personal injuries he sustained as a result of the accident. His wife sued per quod. At the conclusion of the trial, the jury found plaintiff Edward Burdzy 81.6% negligent, defendant 18.4% negligent and assessed damages at $21,667.00 and $0, for Edward Burdzy and his wife, respectively. The trial court, pursuant to N.J.S.A. 2A:15-5.2.c, molded the verdict and entered a judgment of no cause for action in favor of defendant. Plaintiffs' motion for a new trial was denied and this appeal followed.

Plaintiffs seek a reversal and a remand for a new trial as to both liability and damages. They contend that the trial court erred (1) in instructing the jury with respect to both N.J.S.A. 39:4-144 and N.J.S.A. 39:4-90 because the intersection was governed by a yield sign and (2) in failing to instruct the jury as to the standard of care required when making a U-turn.

I.

The trial court committed reversible error in charging portions of both N.J.S.A. 39:4-144 and N.J.S.A. 39:4-90. N.J.S.A. 39:4-90, concerning the right of way at intersections, provides in part:

The driver of a vehicle approaching an intersection shall yield the right of way to a vehicle which has entered the intersection. . . .

The driver of a vehicle within an intersection intending to turn to the left shall yield to a vehicle approaching from the opposite direction which is within the intersection or so close thereto as to constitute an immediate hazard, but the driver having so yielded, and having given a signal when and as required by law, may make the left turn; and other vehicles ...


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