On appeal from Superior Court of New Jersey, Law Division, Cape May County, L-221-99.
Before Judges Skillman, Coburn and Wells.
The opinion of the court was delivered by: Coburn, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 23, 2003
In this two-vehicle, personal injury negligence case, plaintiff appeals from a judgment confirming the jury's verdict in favor of defendant and from an order denying his motion for a new trial. The jury found that the defendant-driver was without fault; consequently, it did not consider plaintiff's negligence. The primary issue is whether the trial judge erred in his jury charge on a section of the Motor Vehicle Code which prohibits crossing a"No Passing" line, such as a double yellow line dividing a two-way highway, except when the driver's lane is"obstructed and impassable." N.J.S.A. 39:4-86. More specifically, the question is whether the evidence justified submitting the statutory exception to the jury as bearing on the defendant-driver's conduct when the road was not impassable but may have been obstructed. Plaintiff also contends that the verdict was against the weight of the evidence, that evidence about the presence of his passenger was inadmissible, and that the judge erred in charging sections of the Motor Vehicle Code as applicable to his conduct mainly because of the nature of the vehicle he was operating, and in one instance because of the section's claimed irrelevance. We affirm.
On a sunny day in August 1997, in Vineland, plaintiff decided to give a seven-year old girl a ride on a Go-Ped. This vehicle, which did not have a rearview mirror, had a small gasoline engine in the rear, a platform on which the driver stands, and a"T-Bar" extending above the front wheel. The hand brake was attached to one side of the"T" and the accelerator was attached to the other side of the"T." According to plaintiff, it was designed to be driven by one person. He placed the girl between himself and the"T-Bar," and she held on to the vertical shaft of the"T," which turned with the movement of the"T" by the driver. Her grip could impede the driver's ability to turn. Plaintiff drove with his passenger onto Franklin Road, a two-way public street, with one lane going in each direction, separated by a double yellow line.
After traveling a short distance at a speed of about ten to fifteen miles per hour in the westbound lane, plaintiff decided to turn left into Sherwood Avenue. Either while he was still in the westbound lane, or after he had entered the eastbound lane, he became aware of a truck, which had come from his rear, passing on his left. The truck was either entirely in the eastbound lane, which seemed to be plaintiff's recollection, or was straddling the double yellow line, which was its driver's recollection.
According to the truck driver, defendant Roy C. Trotta, he had approached the Go-Ped at a speed of fifteen to twenty miles per hour and had sounded his horn a few times to warn plaintiff that he was passing. Plaintiff denied hearing the horn. Both agree that plaintiff began his left turn without signaling. The right side of the truck, either at its front or near its front wheel, came into contact with plaintiff, who suffered serious personal injuries. On seeing the truck a moment or two before the accident, plaintiff picked up his rider and threw her to"safety" in the westbound lane.
We consider first the statute governing no-passing lines, N.J.S.A. 39:4-86, which provides in pertinent part as follows:
Except when otherwise directed by a duly constituted traffic or police officer or when the lane in which he is operating is obstructed and impassable, the driver of a vehicle shall not cross an appropriately marked"No Passing" line in a"No Passing" zone....
After reading the statute to the jury, the judge charged that it should determine whether defendant was justified in crossing the double yellow line because the road was obstructed and impassable. If the road was not so impaired, the jury was told to consider the otherwise admitted violation as evidence of negligence.*fn1 The statute does not ...