On appeal from Superior Court, Law Division, Middlesex County.
Petrella, Bilder and Scalera. The opinion of the court was delivered by Petrella, P.J.A.D.
In this motor vehicle negligence action the jury rendered a $5,000 verdict*fn1 in favor of plaintiffs, but concluded that plaintiff*fn2 Geraldine H. Tichenor was herself 40% negligent. The judge molded the verdict and entered judgments for 60% of $2,500 plus $350 in interest on each. Plaintiffs' subsequent motion for judgment notwithstanding the verdict, or in the alternative a new trial, was granted by an order in which judgment was entered for the full monetary amount, eliminating the jury's determination of negligence attributable to plaintiff.
Defendant appeals on the ground that the judge improperly amended the jury verdict. She argues that the jury's determination that plaintiff was 40% negligent should be reinstated. Plaintiffs oppose the appeal, but argue alternatively that, even assuming the judgment is set aside so as to reinstate the jury verdict, the percentage of negligence should only operate to reduce the claim of the injured plaintiff, and not reduce the per
quod award. That issue was not presented to the trial judge when she molded the jury verdict.
The only evidence as to liability at the trial was given by plaintiff and through various photographs and diagrams. The facts are not unduly complicated. On October 6, 1983, at about 2:30 p.m., plaintiff was driving in a northerly direction on Main Street in Metuchen in an area where the posted speed limit is 30 miles per hour. She testified that she observed two very large Public Service trucks parked in the north-bound lane on her right hand side. Defendant Jeannie Santillo was attempting to exit a gasoline station by way of the driveway in front of the parked trucks and her automobile collided with plaintiff's vehicle. Defendant did not testify. Plaintiff testified to a statement she heard defendant make to the police that defendant could not see the road because her view was obstructed by the two Public Service trucks.
Plaintiff said that she was familiar with the gas station on that particular corner and the location of the intersecting street. She was able to observe that one driveway to the gas station was blocked and that only the other driveway was open. She first saw defendant's vehicle when it was about eight feet away. Although she slammed on her brakes, her car made contact with the left front fender of defendant's car. This caused damage to her vehicle's headlights, bumper, grill and hood. She also sustained injury to her neck.
At the end of the case plaintiffs unsuccessfully moved to strike the defense of comparative negligence. Defense counsel argued that it was the jury's function to determine credibility and pointed out that it would have the photograph to compare with the testimony. The judge noted that the jury could find that the plaintiff had not been exercising reasonable caution. It could compare her testimony about her speed with the physical evidence in the photograph.
In denying plaintiff's motion to strike the comparative negligence defense the judge said:
. . . the jury could conclude that the plaintiff having been familiar with this roadway and with the exits of the gas station -- she said she went this way every day -- and on that day seeing the trucks blocking one exit and the second truck blocking a part of the second exit, I suppose a jury might reasonably conclude that she ought to have been a little more careful in approaching and going past that second exit; that instead of going 28 miles, 25 miles per hour as she said that [was] about what she had reached as she pulled onto Main Street, that she should have been going something like 5 miles, creeping past that blockage. I think that's not -- that would not be beyond the realm of reason even without the testimony of the defendant.
On plaintiff's motion for judgment n.o.v. or for new trial, however, the judge stated that she should have granted plaintiffs' motion to strike the comparative negligence defense when it was originally made. The judge essentially concluded that plaintiff conformed to the standard of conduct of a reasonably prudent person, and that the jury ...