On appeal from Superior Court of New Jersey, Law Division, Camden County.
Brody and Long. The opinion of the court was delivered by Brody, J.A.D.
Plaintiff seeks damages in this negligence action for serious injuries he received in a motor vehicle accident. He was a passenger in an automobile operated by his wife, defendant Louise Kendall, when it collided with a bus owned by defendant Trailways, Inc. and operated by its employee, defendant Herbert Hicks. The jury found that Louise Kendall's negligence was the sole proximate cause of the accident. The effect of the verdict was devastating to plaintiff because his wife was uninsured. By finding that the accident was not also proximately caused by Hick's negligence, the verdict left plaintiff with no recovery. See Kendall v. Snedeker, 219 N.J. Super. 283 (App.Div.1987).
Superficially the verdict appears unexceptional. The vehicles were travelling in adjoining southbound lanes of a two-lane highway, the Kendall automobile in the left lane and the bus in the right. When Kendall moved to enter the right lane in front of the bus, the bus struck the passenger side of her automobile. However, Kendall did not simply cut off the bus.
The bus was carrying passengers from Pennsylvania to the Atlantic City casinos. After crossing one of the bridges over the Delaware River, the bus entered the left lane of the highway behind the Kendall automobile. Hicks testified that he believed that Kendall was a nervous driver because from time to time for no apparent reason she briefly applied her brakes forcing him to slow down. The Kendalls testified that Hicks was tailgating and Hicks admitted that he was only one or two car lengths behind their automobile moments before the accident. Although a witness testified generally that traffic at the time was moderate, the only other vehicles referred to specifically were three large trucks in the right lane, about a quarter of a mile up the road, that were hauling pieces of steel.
The events leading to the accident began when the three trucks moved in unison to the left lane. That maneuver dislodged a steel plate from the last truck's cargo. The plate, three and a half feet square and a half-inch thick, fell onto the
left lane and tumbled toward the Kendall automobile. As soon as Hicks saw the trucks move into the left lane, he moved his bus into the right lane. He gave two reasons for switching lanes at that time. At one point he testified that it was because with the trucks out of the way he could pass the Kendall automobile on the right. At another point he testified that it was because he anticipated that Kendall would panic and brake her automobile when she saw the plate tumbling towards her. Soon after Hicks moved into the right lane Kendall tried to do the same and cut off the bus.
As a practical matter, the only issue at trial was whether Hicks was negligent to any degree when he either attempted to pass Kendall on the right or failed to slow down so that she would have room to move her automobile into the right lane ahead of the bus if she chose that way to avoid the steel plate. The question is so close that an erroneous instruction relevant to the issue would probably affect the jury verdict. It is therefore likely that the jury found Hicks entirely free of fault because the trial judge erroneously not only refused to instruct them that a statute forbids the driver of a motor vehicle from passing another motor vehicle on the right, but instructed the jury that the statute expressly permitted Hicks to pass the Kendall automobile on the right.
The trial judge refused to permit the jury to consider the following portion of N.J.S.A. 39:4-85 when considering whether Hicks was negligent:
The driver of a vehicle overtaking another vehicle proceeding in the same direction shall pass at a safe distance to the left thereof and shall not again drive to the right side of the roadway until safely clear of the overtaken vehicle. [Emphasis added.]
He ruled that the foregoing sentence of the statute does not apply to a roadway having more than one lane in the direction of travel because of the next sentence:
If vehicles on the roadway are moving in two or more substantially continuous lines, the provisions of this paragraph . . . shall not be considered as prohibiting the vehicles in one line overtaking and passing the vehicles ...