On appeal from Superior Court, Law Division, Union County.
Michels, Muir and Keefe. Keefe, J.s.c. temporarily assigned.
The issues to be decided on this appeal are: 1) whether the trial court erred in failing to instruct the jury, pursuant to Dolson v. Anastasia, 55 N.J. 2 (1969), that a violation of N.J.S.A. 39:4-89 is negligence as a matter of law under the facts of this case; and 2) whether instructing the jury on the sudden emergency doctrine constituted plain error.
Maria and Fernando Paiva, appeal from an order of the trial court denying their motion for a new trial.*fn1 Plaintiff was operating her motor vehicle in the inside, southbound lane of the New Jersey Turnpike on January 3, 1984 when she was struck in the rear by a tractor-trailer operated by defendant Michael Pfeiffer, an employee of defendant Danchem Inc., trading as Colonial Chemicals. Just prior to the accident plaintiff was operating her vehicle at the speed limit and following a vehicle at a distance of approximately 45 feet when she observed the brake lights of that vehicle go on. Simultaneously,
she observed smoke being produced by the braking action of a car carrier to her immediate right in the center lane. Pfeiffer was at the same time operating a tanker truck in the center lane of travel behind the car carrier. He testified that he was approximately 50 feet behind the car carrier when he observed smoke emanating from that vehicle's tires as it braked heavily. Pfeiffer applied his own brakes and said that he observed plaintiff's vehicle to his left and another truck to his right as he was doing so. Rather than strike the car carrier in the rear, Pfeiffer chose to enter the left lane where he struck plaintiff's vehicle instead. Plaintiff was in the process of slowing down but had not stopped by the time she was struck in the rear by Pfeiffer's vehicle.
Defendant, Kenneth Raymond was operating a pick-up truck in the southbound lanes of the Turnpike, apparently some distance ahead of plaintiff and Pfeiffer, when he was notified by a passing motorist that his spare tire, which had been previously affixed to the underside of his truck, had come loose and fell upon the roadway. Raymond testified that he backed his vehicle up along the shoulder of the road to the point where an accident had just taken place. Neither plaintiff nor Pfeiffer saw the Raymond vehicle prior to the accident or saw the errant spare tire. There was no testimony from the operator of the car carrier or the vehicle ahead of plaintiff. However, a legitimate inference can be drawn from these undisputed facts, that the car carrier and the vehicle ahead of plaintiff had applied their brakes in response to the spare tire coming free from Raymond's vehicle.
Plaintiff was injured as a result of the collision and brought suit against Pfeiffer, his employer, and Raymond. At the end of the proofs, the court sua sponte found that plaintiff was not negligent and struck the defense of comparative negligence raised by both defendants. That order is not under appeal.
Counsel for plaintiff and Raymond submitted a request that the jury be instructed in accordance with the principles established
in Dolson v. Anastasia. The court denied that request, charging instead that Pfeiffer's violation of N.J.S.A. 39:4-89, if so found, was merely evidence of negligence. Counsel for Pfeiffer requested that the court instruct the jury as to the sudden emergency doctrine. Counsel for plaintiff and Raymond objected only in that the request submitted by Pfeiffer's attorney was incomplete. The trial judge accommodated all counsel and instructed the jury accordingly.
The jury returned a unanimous verdict of no cause for action, finding no negligence on the part of either defendant. Plaintiff filed a motion for a new trial as to defendant Pfeiffer only. The court denied the motion and this appeal followed.
It is well settled law in this State that the motor vehicle statutes establish standards of conduct for motorists on our highways, and, under usual circumstances, the violation of motor vehicles statutes is evidence of negligence. However, where a motor vehicle statute codifies the common law standard, the violation of the statute is not evidence of ...