Before Judges Petrella and Braithwaite.
The opinion of the court was delivered by: Petrella, P.J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued October 18, 1999 - Decided November 10, 1999
On appeal from Superior Court of New Jersey, Law Division, Morris County.
The opinion of the court was delivered by
After a trial, the jury returned a verdict of no cause of action dismissing the negligence and wrongful death action brought by plaintiffs Asa Hochman and Adiya Hochman, as administrators ad prosequendum and general administrators of the estate of Ruth Hana Hochman, their deceased nine year old daughter. The jury found that defendant Susan Karpenski was not negligent while driving her motor vehicle and colliding with the child.
On appeal, plaintiffs argue that the Judge erred in refusing to instruct the jury as to a driver's duty to provide an audible warning with the horn when reasonably necessary to ensure safe operation of a motor vehicle under N.J.S.A. 39:3-69. They also argue that the Judge erred in refusing to permit their human factors engineer to testify on the use of the horn as an appropriate safety feature, and about options available to defendant under the circumstances of the case.
The accident occurred at about 4:30 p.m. on July 28, 1994 on Elm Street in Florham Park. The jury heard testimony from which it could have found that Karpenski was driving a few blocks from her home and within the posted 25 m.p.h. speed limit. According to Karpenski, as she was driving down Elm Street she noticed two young girls, nine year old Ruth Hana Hochman and her friend Natasha Quirch, talking at the roadside. She thought the two girls were not paying much attention to the road so she slowed down and prepared to stop as she was worried that they might step onto the street. Karpenski thought the two girls had seen her approaching because they appeared to be waiting for her to pass and as they stepped off the curb, one girl stopped the other and then both stepped back onto the curb. A van was approaching Karpenski in the opposite direction, so she moved her vehicle as far to the left of the roadway as she could and took her eyes off the two girls. Karpenski then started to increase her speed and heard a loud noise. She realized she had hit the young girl. The child was taken to the hospital by emergency services, but extensive efforts to resuscitate her were unsuccessful and she was pronounced dead at 6:20 p.m.
The jury only reached the first question on the special verdict form, the question of whether defendant was negligent, and whether that negligence was the proximate cause of the accident, and answered no by a 7 to 1 vote. The jury never reached any question of comparative negligence of the decedent or any other question.
Plaintiffs argue that the Judge should have instructed the jury that a violation of N.J.S.A. 39:3-69 could be considered, along with other facts in the case, as some evidence of negligence. That statute deals with horns and audible warning devices and states in pertinent part:
Every motor vehicle except a motor-drawn vehicle when operated upon a highway shall be equipped with a horn in good working order and capable of emitting sound audible under normal conditions from a distance of not less than 200 feet, but no horn or other warning device shall emit an unreasonably loud or harsh sound or a whistle. The driver of a motor vehicle shall, when reasonably necessary to insure safe operation, give audible warning with his horn but shall not otherwise use such horn when upon a highway.
Plaintiffs rely on Maini v. Hassler, 38 N.J. Super. 81, 84 (App. Div. 1955), where the issue was whether a statute regulating the use of headlights should have been considered by the jury in connection with all of the other facts with respect to the issue of negligence. The issue was whether use of the low headlight beam, rather than the high beam, alone, or in conjunction with other circumstances, constituted negligence in the operation of the car which proximately caused the accident. We do not consider that case determinative. There, the requirement to have lights on while driving essentially exists continuously from dusk to dawn. There is no condition which makes use of lights optional during this period, unlike the case on appeal, where the propriety as to the use or non-use of the horn depends on the circumstances.
The trial Judge relied on Bracken v. Bruce, 190 N.J. Super. 146 (App. Div. 1983), in concluding that the statute (N.J.S.A. 39:3-69) was designed primarily to prohibit unnecessary noise, rather than to create a duty to use the horn. The Judge interpreted the "when reasonably necessary" language in the ...