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Leighton v. Sim

Decided: June 4, 1991.

DOROTHY LEIGHTON, PLAINTIFF-APPELLANT,
v.
HAROLD L. SIM, JR., DEFENDANT-RESPONDENT



On appeal from the Superior Court of New Jersey, Law Division, Mercer County.

Deighan, Baime and Arnold M. Stein. The opinion of the Court was delivered by Arnold M. Stein, J.A.D.

Stein

Plaintiff appeals the jury verdict of no cause for action and the denial of her new trial motion.

We reverse and remand for a new trial because the trial judge gave prejudicial, misleading instructions to the jury. He should not have charged the sudden emergency doctrine in this pedestrian knockdown case. There was nothing sudden about plaintiff's appearance in the roadway in front of defendant and there was no emergency to which he had to react, unless it was one created by his inattention to conditions directly in his path.

The accident happened on December 10, 1986, at about 5:50 P.M., on West Delaware Avenue in Pennington, about 200 feet east of its intersection with Route 31. The intersection is controlled by a traffic signal. The weather was clear and the road was dry. Although the accident location was not well-illuminated, there was a well-lit shopping strip on each side of the street, giving ample notice to oncoming cars of the potential presence of pedestrians in the roadway. West Delaware Avenue has two lanes, each twenty-eight feet wide. The speed limit is twenty-five miles per hour. Plaintiff was crossing West Delaware Avenue in a northerly direction, returning to her car, located in a parking lot across the street. She testified that she walked diagonally to the middle of the road where:

I stopped, looked. I saw that the light was still red, and there was nothing coming in my direction, that is going in the easterly direction. So I proceeded to the middle and stood, while I was there in the middle and stood there.

. . . .

I looked left [easterly], the light was still red, looked right [westerly], looked left, started to walk and bang.

Defendant testified that he was traveling west on West Delaware Avenue, heading towards Route 31 at approximately twenty-five miles per hour. He was familiar with the area. He first saw plaintiff when she was twenty feet in front of his car, to the right of the center line, walking to the other side of the road and looking straight ahead. Although he slammed on the brakes he was unable to avoid striking plaintiff on the passenger side of his car. He saw her body go "up in the air" upon impact.

According to plaintiff's reconstruction expert, if defendant was traveling at twenty-five miles per hour with his headlights on, he would have clearly seen her from a distance of at least 150 feet. Allowing for a reaction time of two seconds, defendant should have been able to stop his vehicle approximately fifty feet in front of plaintiff, thereby avoiding the accident. A three-second reaction time would have enabled defendant to stop his automobile after traveling 110 feet, or forty feet in front of plaintiff.

Moreover, defendant's testimony that he saw plaintiff when she was twenty to thirty feet in front of his car and that she was tossed in the air when he struck her, would permit the jury to conclude that defendant was traveling well in excess of the twenty-five mile-per-hour speed limit.

There was ample evidence for the jury to find either or both parties inattentive and therefore negligent. That is why it was improper for the judge to give the jury a totally inapplicable sudden emergency charge, an instruction so prejudicial in this ...


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