Tabor v. O'GRADYTabor v. O'GRADY
Plaintiffs Eldon V. Tabor and Edward J. Callahan, rear-seat passengers in a two-door Oldsmobile convertible being driven by the defendant William O‘Grady, instituted this action in the Union County Court to recover damages for personal injuries sustained when the automobile collided with an iron telephone pole on Broad Street, Newark,
Defendant moved to set the verdicts aside on two grounds: (1) plaintiffs, and particularly Tabor, had been guilty of contributory negligence as a matter of law; and (2) the summation of plaintiffs’ counsel to the jury was improper, prejudicial and inflammatory. The trial judge ruled that there was evidence that Tabor had been intoxicated, that the jury could logically have concluded that he lacked the capacity to appreciate the extent of the peril to him, and that therefore he was not necessarily contributorily negligent in remaining in the vehicle. The court did not directly pass upon the propriety of the summation, reasoning that defendant‘s negligence was clear, the verdicts were not excessive and, as a result, “those emotional remarks had no effect upon the jury * * *.” On this appeal, defendant challenges both of these rulings.
Plaintiff Tabor, 27 years of age on the date of the accident, left his home in Linden, N.J., at 6:00 P.M. on Friday evening, April 26, 1957. He went to a White Castle restaurant in Linden and “stayed there for a while.” He then went to a White Castle in Elizabeth, his friend Bernie driving him. At about 11:00 P.M., Tabor went to the Silver Moon bar in Elizabeth and there consumed a pizza pie and “three or four highballs,” consisting of whisky. He left at about
Prior to arriving at the White Castle on his motorcycle, Callahan had had four to seven glasses of beer. As for Hoey and the 19-year-old O‘Grady, they had gone for a ride with two girls in O‘Grady‘s father‘s car, had taken the girls home, and then proceeded to the White Castle located at the corner of Elmora and Westfield Avenues. Neither had imbibed any alcoholic beverages.
These four young men remained at the White Castle until after 3:00 A.M., talking, drinking coffee, and reading newspapers. Callahan went to drive home but while astride his motorcycle, it fell because the kickstand was not down. The others did not think Callahan “was in shape to drive the motorcycle home,” and it was taken to a nearby parking lot and left there for the night. When O‘Grady offered to drive Tabor and Callahan home, all four entered O‘Grady‘s car. Hoey sat next to the driver and plaintiffs, as noted, sat in the rear.
O‘Grady did not testify, and it is uncontroverted that he drove the car at an excessive rate of speed, estimated at 70 to 75 miles per hour. Hoey remembered that, at times, the accelerator was depressed “all the way.” O‘Grady ignored several red traffic lights and was going too fast to be able to stop for another. After speeding recklessly through Elizabeth, O‘Grady came to the beginning of Broad Street, Newark, a 25-mile-per-hour zone. In making a left turn onto that street, there was some difficulty with a hub-cap. O‘Grady stopped the car next to the curb and got out. When he returned, the frantic ride continued down Broad Street.
At least twice during this 10-minute, 3 1/2-mile ride, Hoey told O‘Grady to “slow down.” The convertible top being down, he was required to speak in a “pretty loud” tone of voice. Hoey testified he spoke loud enough for the two men in the rear to hear him. O‘Grady merely replied, “Are you
O‘Grady eventually crashed into a telephone pole on Broad Street, resulting in the injuries for which Tabor and Callahan brought this action. Tabor was taken to the Martland Medical Center. A hospital record, admitted into evidence without objection, concluded with a finding of a physician to this effect: “Acute alcoholic intoxication.” The record also states: “Pt. has strong ethenol odor on breath.”
At the trial the defense offered no witnesses but relied mainly on testimony elicited from Tabor on cross-examination to support the charge of contributory negligence. Tabor testified in part as follows:
“Q. When he started off from the White Castle going at 75 miles an hour, 70 to 75 miles an hour, and going through red lights did you then become concerned? A. Yes, sir.
Q. Did you then recognize that this constituted a danger to you and your life and limbs? A. Yes, sir.
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Q. And what did you do about it? A. I didn‘t do nothing.
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Q. In other words, you were balancing the concern that you had for your life and limb as against the discomfort or inconvenience that you have in getting back to Linden? A. That‘s right.
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Q. Tabor, were you drunk when you were in that car? A. No, I wasn‘t.
Q. What was your physical condition? A. Well, I was drinking; I was a little bit high.
Q. You were a little bit high? A. Yes, sir.
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By the Court:
Q. You were in control of your faculties so that you knew you were in danger. A. Yes, that‘s right.
Q. Isn‘t that right? A. Yes, sir.”
Expressed in the brief of the defendant is the view that the trial judge erred in refusing to rule, at the close of
We have concluded that it is not necessary to consider whether there was sufficient evidence of Tabor‘s intoxication to present a jury issue as we are satisfied that the question is not material to the issue of Tabor‘s negligence. The mere fact that plaintiffs, or either of them, were intoxicated does not exculpate them from the charge of contributory negligence, as we shall further develop hereinafter. Since in any event there must be a new trial in this case, see the discussion infra of the second ground of appeal, it is necessary to express our views on the defense of contributory negligence in this case.
A passenger in an automobile must exercise such reasonable care and caution as an ordinarily prudent person would exercise under like circumstances. Ambrose v. Cyphers, 29 N.J. 138, 150 (1959); Bowman v. Central R. Co., 27 N.J. Super. 370, 375 (App. Div. 1953). The guest has the right to assume that the driver will exercise proper care and caution and, until he has actual or constructive notice that the driver is incompetent to operate the vehicle or is operating it in a negligent manner, there is no duty to supervise the driving, to keep a lookout for danger or to warn of a danger as to which there is reason to believe the driver is aware. But while the passenger ordinarily has no duty to
In the present case, plaintiffs, even if not intoxicated, could not at the time they entered the car reasonably have anticipated that O‘Grady would drive in such suicidal fashion; O‘Grady was not intoxicated and there was no other basis for a suspicion that he was incompetent to drive. See King v. Jones, 47 N.J. Super. 279, 283 (App. Div. 1957); Orbanus v. Seder, 48 N.J. Super. 512, 516 (App. Div. 1957); compare Petrone v. Margolis, 20 N.J. Super. 180 (App. Div. 1952). Cf. Sothern v. Van Dyke, 114 N.J.L. 1, 8 (E. & A. 1934). Moreover, there was no evidence that O‘Grady was not fully alert to the peril he was creating; plaintiffs were not, therefore, under Ambrose v. Cyphers, supra, 29 N.J., at pages 150-151, in violation of the duty to warn of danger. As to the obligation to remonstrate, distinguishable from the duty to warn of a specific danger, Tabor could be found by a jury to have been reasonably of the belief that any protest on his part would do more harm than good. O‘Grady having ignored Hoey‘s remonstrances, it is questionable that any further protest would have averted the risk, and the fact-finder could justifiably find no departure from reasonably prudent conduct in plaintiffs’ remaining silent.
The only remaining contributory fault with which plaintiffs can reasonably be charged is to have known and appreciated the peril and to have voluntarily chosen not to
There remains to consider, however, defendant‘s contention that a reasonably prudent and sober person would have extricated himself from the automobile at an appropriate opportunity, and that a duty devolved upon the trial judge so to rule as a matter of law. While mere convenience would not excuse a plaintiff from availing himself of the opportunity to leave an automobile in the face of known danger, we nevertheless conclude that this issue, under all the circumstances here shown, was reasonably debatable and for that reason properly one for the trier of the facts. There were circumstances which, taken together, could be found to have qualified the duty to alight. It was 3:30 A.M. (when even the ordinary unintoxicated man probably would be tired and less perceptive of danger); there was no other apparent mode of transportation to Linden; and the ride had been in progress for but ten minutes. Moreover, it was for the jury to say that the brief stop when O‘Grady entered upon Broad Street afforded a reasonable opportunity to alight. Only in the clearest case of fault, where the contrary
It may develop on a retrial of the cause, moreover, that even if plaintiffs are found to have acted unreasonably, recovery would not be barred therefor. It is the settled rule of this and other jurisdictions that contributory negligence is not available as a defense when the defendant has been guilty not merely of negligence but of wanton or willful misconduct. As was said in Camden, G. & W. Ry. Co. v. Preston, 59 N.J.L. 264, 266-67 (E. & A. 1896):
“In all cases where the defendant‘s negligence was so gross as to imply a disregard of consequences, or a willingness to inflict the injury, the plaintiff may recover, even though he was a trespasser, or did not use ordinary care.”
The jury should be instructed that plaintiffs’ contributory negligence, if any, will not bar a recovery if the injuries were caused by the defendant‘s reckless disregard for their safety. Restatement, Torts, § 482; 2 Harper & James, op. cit., supra, § 22.6; Prosser, op. cit., supra, § 51, pp. 289-290. Cf. Iaconio v. D‘Angelo, 104 N.J.L. 506 (E. & A. 1928).
Turning to the second point of appeal, we agree with the defendant that the summation of plaintiffs’ counsel to the jury far exceeded the bounds of proper comment and argument. Included in the discourse were matters of evidence not in the record. Counsel for the plaintiffs indulged in unjustified aspersions on defense counsel‘s motives in not offering the defendant as a witness and accused his
Objection was taken to the remarks at least six times. After one of the attacks upon his presentation of the case, the defendant‘s attorney said: “Your Honor, I can‘t sit here and take this. I cannot be charged with poisoning the minds of a jury.” The trial judge sustained the objection, as he did others, and cautioned counsel to stop fighting until the trial was over. Ruling on another objection, the court remarked: “Keep personalities of counsel out of it. I have had enough of it myself.”
The latitude which counsel has in addressing the jury was clearly exceeded by the inflammatory and altogether improper comments cited above and others. Blackman v. West Jersey & Seashore R. Co., 68 N.J.L. 1 (Sup. Ct. 1902); Leffler v. Aetna Life Ins. Co., 119 N.J.L. 370 (E. & A. 1938); Kulodzej v. Lehigh Valley R. Co., 39 N.J. Super. 268, 274 (App. Div. 1956); Canons of Professional Ethics, §§ 15, 17, 22; Annotation, 29 A.L.R.2d 996.
Plaintiffs argue that any impropriety in the summation was not prejudicial because the defendant was indisputably negligent and the damages awarded were not excessive. As indicated above, however, there was a close factual issue to be resolved in regard to contributory negligence, and the
The judgment is reversed and remanded for a new tri