Mockler v. RUSSMANMockler v. RUSSMAN
In this personal injury automobile negligence action рlaintiffs Anna Mockler and her husband Erwin Mockler appeal from a judgment entered in the Law Division following a jury verdict of no cause for action in favor of defendants John Russman and Joseph Lorusso. Plaintiffs’ motion for a new trial was denied.
Mrs. Mockler was injured on January 24, 1966 when a school bus owned by Russman and operated by Lorusso struck the rear of her car which was stopped in the northbound lane of Washington Avenue, a two-lane road, at the intersection of Hickory Avenue in Bergenfield. She brought suit to recover damages for her injuries and her husband joined per quod.
Defendant Lorusso testified that he had been driving the school bus since 7 A.M. and knew that the roads were slippery due tо the covering of a thin layer of snow. He had made a stop at the Dumont School and had three student passengers in the bus, one of whom he had picked up two blocks before he stopped at the school. He intended to рick up three more students who were awaiting him at the intersection of Hickory and Washington Avenues and thereafter intended to drive his passengers to the Holy Angels School. He said that he had not skidded when he had stopped the bus previоus to the accident. Lorusso testified that he first saw plaintiffs’ car stopped at the Hickory Avenue intersection when he was about a block and a half to its rear on Washington Avenue. He said he was driving at a speed of about 10 miles per hour and when he reached a point 50 feet to the rear of plaintiffs’ car he applied his brakes. He testified that the bus skidded and that although he turned his wheel to the right in an attempt to steer it between the Mockler car and the right hand curb, the bus kept going straight and struck the rear of plaintiffs’ vehicle.
Plaintiffs first contend that the verdict was against the weight of the evidence and that the trial court erred in denial of their motion for a new trial. They argue that defendant
It has been generally held by courts in other jurisdictions that the skidding of an automobile is not in itself sufficient to justify an inference of negligence on the part of the operator of the motor vehicle. Smith v. Baltimore Transit Co., 214 Md. 560, 136 A.2d 386, 390 (Ct. App. 1957); James v. Von Schuckman, 115 Conn. 490, 162 A. 3, 4 (Conn. Super. Ct. 1932); Hoch v. Doughty, 224 A.2d 54, 56 (Me. Sup. Jud. Ct. 1966); Davin v. Levin, 357 Pa. 554, 55 A.2d 364, 55 A.2d 364 (Sup. Ct. 1947); L‘Ecuyer v. Farnsworth, 106 Vt. 180, 170 A. 677 (Vt. Sup. Ct. 1934). See also Annotation, “Automobiles — Skidding,” 58 A.L.R. 264, 266 (1929); 113 A.L.R. 1002, 1005 (1938); 2 Stevenson, Law of Negligence, § 662, pp. 1007-08 (1954). Should the rule be otherwise every automobile driver would be compelled to stay off the public roads when such roads happened to be slippery. It is common knowledge that the sudden and unexpected skidding of an automobile is one of the natural hazards of driving on icy roads and that it may befall even the most cautious of drivers. If such a driver is oрerating his car as would a reasonably prudent person under the circumstances, he is not to be held negligent
It is well-settled law that a recovery for damages cannot be had merely upon proof of the happening of an accident. Negligence is never presumed; it, or the circumstantial basis for the inference of it, must be established by competent proof presented by plaintiff. Whether such proof exists is preeminently a question of fact for the jury. Murphy v. Terzako, 14 N.J. Super. 254, 259 (App. Div. 1951).
In the instant case there was testimony that while Lorusso knew the roads were slippery he had not skidded when he stopped the bus on previous occasions that morning. It was undisputed that he was operating his bus at a speed not in excess of 10 to 20 miles per hour when he applied his brakes 50 feet to the rear of plaintiffs’ car, and that despitе his efforts to avoid a collision the bus skidded into the rear of that vehicle. Other than these facts there was no evidence that Lorusso could, with the exercise of proper diligence, have foreseen that his bus would skid into the rear of plaintiffs’ car when he applied the brakes.
The question for determination by the jury was whether Lorusso exercised the care that a reasonably prudent person would have exercised under the circumstances confronting him. The verdict returned by the jury indicated that the jury found that he had exercised such care and that the accident was caused not by any negligence on the part of Lorusso but solely by the slippery condition of the road.
The verdict оf the jury may not be set aside as against the weight of the evidence unless it clearly and convincingly appears that it is the result of mistake, partiality, prejudice or passion.
From our review of the record and the legitimate inferences to be drawn from the testimony we cannot say that the jury could not properly have concluded that Lorusso could not have foreseen that the icy condition of the road would cause the bus to skid and hence was not guilty of negligence. We are satisfied that the verdict of the jury was not contrary to the weight of the evidence and that it does not clearly and unequivocally appear that the court‘s denial of plaintiffs’ new trial motion was a manifest denial of justice under the law.
In view of the foregoing, we also find no error in the court‘s denial of plaintiffs’ motion for a judgment at the close of the proofs. Inferences that the accident did not occur through the fault of the bus drivеr are supported by the facts. The issue of liability was a matter solely for determination by the jury.
Plaintiffs further allege that the court erred in its charge to the jury. They first contend that the court erred in refusing their request to charge that part of
“Thе driver of a vehicle shall not follow another vehicle more closely than is reasonable and prudent, having due regard to the speed
of the preceding vehicle and the traffic upon, and condition of, the highway.”
We find no error in the court‘s action. We agree with the trial court that the statute is inapplicable to the facts of this case — that it pertains to a situation where both vehicles involved in an accident are in motion upon the highway.
Plaintiffs сlaim that having refused to charge the language of
“Such an event (a rear-end collision) does not ordinarily occur without negligence,”
or
“Usually the driver of the rear car is at fault if he collides with a stationary car in front.”
No request to charge such language was submitted to the court and therefore this contention can only be considered if the court‘s failure to so charge constituted plain error.
Plaintiffs next contend that the court committed plain error by not instructing the jury on the doctrine of res ipsa loquitur and allege that the court affirmatively excluded the inference of defendants’ negligence which could be drawn from the facts by chаrging the jury that plaintiffs had the burden of proving that the driver of the school bus was guilty of negligence. Reliance is placed on Vespe v. DiMarco, 43 N.J. 430 (1964).
We do not agree. The court‘s charge did not exclude from the jury‘s consideration any inferences of negligence which might be drawn from the facts. At the conclusion of plaintiffs’ case the defendants came forward and
Finally, plaintiffs allege that the trial court committed plain error by charging that defendant Lorusso had a duty to exercise only reasonable care and failing to charge “a special and greater degree of care commensurate with the increased danger.” We hold there was no plain error. In Stackenwalt v. Washburn, supra, where visibility of the automobile driver was limited due to heavy fog, the court stated:
“There can be no doubt that the question of negligence in each case may properly be left to the jury with the general instruction * * * of reasonable care under existing circumstances.” (42 N.J., at p. 24)
A similar charge was given by the court in the instant case.
Affirmed.