On appeal from the Superior Court of New Jersey, Law Division, Essex County.
Shebell and Keefe. The opinion of the court was delivered by Shebell, J.A.D.
[236 NJSuper Page 207] Plaintiffs Jermaine Gray, an infant, and his mother Karen Gray, individually and as his guardian, appeal from the entry of a judgment of no cause for action in favor of defendant Diane Pope based upon a jury verdict which found the infant plaintiff pedestrian to be 57% negligent and the defendant auto driver to be 43% negligent in the happening of an accident that occurred on March 26, 1984.
At about 4:30 p.m. on March 26, 1984, infant plaintiff, then age 7, was walking home alone from a candy store located on the southeast corner of Lafayette Street and Orange Avenue in Irvington. Plaintiff was attempting to cross Orange Avenue as defendant was operating her automobile in a northerly direction on Orange Avenue.
According to defendant's testimony on direct examination:
I had spotted the little boy in between cars, proceeded to go, and next thing I heard was a thump. And my girlfriend said, I think I hit him. I stopped. Looked in my rearview mirror. I saw him lying on the ground.
However, on cross-examination when asked whether she said that she saw the boy between the cars, she answered, "[y]eah, I'm not sure if it was between cars, but I remember seeing him."
Defendant asserted she was traveling 15 to 20 miles per hour when she observed the boy about 10 feet from her car "just standing there." She stated that she saw the boy looking towards the right and did not ever see him looking towards her. She estimated that 30 seconds passed from the time she first saw the boy standing on the side of the street until the time she heard the thump and that her car was continuously in motion during that interval. Defendant admitted that she might have been more than 10 feet away from the boy when she first observed him in light of her testimony that 30 seconds elapsed between the time she saw him and the time of the impact. When asked whether she honked her horn during that period of time, she answered, "[h]onk my horn? For what?"
She acknowledged the boy was "just standing there . . . [o]ff the curb" indicating that he was in the street and that it did not occur to her that he might begin to cross the street. Defendant stated that she did not look again after the first time when she saw the child "because I was talking to Evelyn at that time. She was telling me what street to turn." She agreed under cross-examination that there was nothing, including cars, blocking her view of the boy.
The damage to defendant's vehicle was on the passenger side, involving the mirror and the steel rim around the door which was dented in. A witness called by the defense, a young school boy, maintained that he saw the infant step off of the curb, take two steps and start to run although he did not see him run. The witness stated that he then looked away from the infant, and after a lapse of 10 to 15 seconds heard the collision and saw the boy laying on the ground with blood all over the ground.
Following the jury verdict, plaintiffs moved for a new trial and urged for the first time that the jury verdict, in addition to being against the weight of the evidence, was the result of an erroneous instruction to the jury that permitted it to return an improper quotient verdict. This motion was denied.
Our review of the record satisfies us that the court's instruction to the jury constituted plain error under R. 2:10 -- 2, thereby requiring reversal. Plain error exists when "the language employed by the trial judge in guiding the deliberations of the jury constitutes a legal impropriety affecting the substantial rights of the party affected of sufficiently grievous nature to justify notice by the reviewing court and to convince the court that, of itself, the error possessed a clear capacity to bring about an unjust result." Vespe v. DiMarco, 43 N.J. 430, 435-36 (1964), citing State ...