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Mayles v. Wentlejewski

March 01, 2001

BERNARD MAYLES, JR. AND BRIDGET MAYLES, HIS WIFE,
PLAINTIFFS-APPELLANTS,
V.
DAVID J. WENTLEJEWSKI AND FREEHOLD NISSAN, INC.,
DEFENDANTS-RESPONDENTS.



On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, MON-L- 2224-95.

Before Judges King, Lefelt and Axelrad.

The opinion of the court was delivered by: King, P.J.A.D

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted: February 7, 2001

I.

Plaintiff appeals the trial judge's order granting plaintiff's motion for additur, increasing the jury's total automobile accident damage award from $6500 to $21,500. But the judge also reduced the $21,500 award to reflect the jury's 74% calculation of plaintiff's contribution to his own injuries because he did not use his seat belt and the jury's finding of plaintiff's 49% contributory or comparative fault as a driver in causing the accident. The resulting molded judgment was $2850.90 which we affirm. On this appeal, plaintiff raises these three issues.

I. THE COURT ERRED IN CHARGING N.J.S.A. 39:4-90 AS IT APPLIED TO BOTH PLAINTIFF AND DEFENDANT.

II. THE COURT INCORRECTLY MOLDED THE JURY VERDICT.

III. THE TRIAL JUDGE'S MISCALCULATION OF DAMAGES CANNOT BE CURED AND PLAINTIFF MUST GET A NEW TRIAL AS TO DAMAGES.

II.

This case arises out of a motor vehicle accident that occurred in Freehold, Monmouth County on March 21, 1995. At the time, plaintiff Mayles was age thirty-six and worked as a painter and a semipro league basketball referee. Defendant Wentlejewski was employed by defendant Freehold Nissan, Inc. (Freehold), delivering parts to body shops and stores.

Just before the accident, Wentlejewski was operating a Freehold-owned truck on route to Bill's Body Works in the center of Freehold. He was traveling along Waterworks Street, intending to make a left turn onto Court Street. He had activated his left directional signal. While about 150 feet from the intersection, Wentlejewski first noticed plaintiff, who was traveling north on Rhea Street. Wentlejewski was traveling twenty-five miles per hour.

There was a white line where Rhea Street met the intersection, indicating a stop for those traveling on Rhea Street. As plaintiff approached the intersection, he slowed down from about thirty miles per hour to twenty-five miles per hour, but did not stop as he came to the white line. Thinking that Wentlejewski was stopping, plaintiff proceeded into the intersection with the intent of turning left, or veering left, onto Court Street. Plaintiff did not activate his directional signal.

Wentlejewski, while approximately fifty feet from the intersection, realized there would be an impact and applied his brakes. However, the front center of his truck struck the left side of ...


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