On appeal from the Superior Court, Law Division, Morris County.
Furman, Brody and Long. The opinion of the court was delivered by Furman, P.J.A.D.
Plaintiff, executor of the estate of Sandra Eaton, appeals from a jury verdict in favor of defendant, daughter of Sandra Eaton, in a wrongful death action arising out of a single vehicle highway accident. We affirm in part and reverse and remand in part based upon plain errors in the jury charge.
The Eatons, mother and daughter, were driving westbound on Mendham Road in Morris Township on May 10, 1984, approaching midnight. Their car left the narrow two-lane road at a right hand curve, struck a guardrail, flew into the air and landed on its roof about 50 feet from the road. Sandra Eaton was severely injured and died five days later in the hospital. Upon questioning there by the investigating police officer, she stated that her daughter had been driving but that she could not remember the details of the accident.
In her initial statement to the police, also at the hospital, defendant Donna Eaton denied that she had been driving. According to her, a dark colored Chevrolet Nova, with a license plate including the letters L and N and a dent on the passenger door, met their car virtually head-on; after swerving twice her mother lost control and skidded off the road. Notwithstanding her denial that she had been driving, defendant was issued a summons and pleaded guilty to the motor vehicle violation of careless driving, N.J.S.A. 39:4-97. At the trial of the wrongful death action, defendant testified that she had no recollection of the accident or of making a statement to the police.
The police investigation failed to confirm a so-called phantom car. Other tire marks in the roadway were related to a previous accident. Based upon their examination of the accident scene and the physical facts there revealed, both investigating police officers concluded that the Eaton car was not forced off the road by a phantom car traveling eastbound in the westbound lane.
The trial judge charged the jury generally that it had the right to draw reasonable inferences from the evidence. The first issue submitted to the jury was whether Donna Eaton was the driver of the vehicle at the time of the accident. If the answer to that interrogatory was in the negative, the jury was instructed to end its deliberations and to report its verdict. But the jury answered that interrogatory "yes," a factual resolution which is not appealed from.
In defining negligence, the trial judge did not instruct the jury that, if it found that defendant was driving and that she was not forced off the road by a phantom car which met her head-on in the westbound lane, it might draw an inference of negligence from the circumstances of the accident. There was no request to so charge, and the trial judge did not charge sua sponte the permissibility of such an inference. Later, in response to an exception to the charge by defendant's attorney, the trial judge instructed the jury: "So, the law indicates that
the fact that an accident occurred in and of itself does not provide any basis for liability."
From the physical circumstances, if the jury discounted defendant's immediate post-accident explanation of a phantom car, it may have inferred that defendant was driving at an unreasonably safe speed or failing to maintain the control of her car that a reasonably prudent driver would have maintained. Yet it was not instructed that it could draw such an inference. To the contrary, jurors of ordinary comprehension may have understood from the charge that the jury was foreclosed from drawing an inference of negligence from the circumstance of the accident itself.
Vespe v. DiMarco, 43 N.J. 430 (1964), is the controlling authority. The omission of a jury charge of a permissible inference from the circumstances of an accident, coupled with a general instruction that the occurrence of an accident does not bespeak negligence, is plain error. In Vespe, defendant skidded off a highway which had snow patches on it and struck a State Trooper who was walking on the ...