Cerf v. Smolderen
Cerf v. Smolderen
Opinion of the Court
This is a consolidated action arising out of an accident involving three vehicles which were proceeding northward on the New Jersey Turnpike one evening. Gran-ville E. Gibb, Jr., driving a tractor-trailer, in the right or slow lane, was forced to come to a stop because of traffic in both lanes which was backed up for nearly a mile ahead as a result of another accident. Arthur E. Cerf, driving a Cadillac in the left or fast lane, swerved to his right into the rear of Gibb’s trailer, apparently in order to avoid hitting other cars ahead of him. In Cerf’s car was his wife, Marietta Cerf, who, so the court instructed the jury, could not be charged with contributory negligence. Finally, there was Miss Yvonne Smolderen, driving a Packard, who rammed her car into the rear of the Cadillac and then went over an embankment to the right.
There were two trials. In the first trial, conducted before Judge Foley, three claims were submitted to the jury: Mrs. Cerf’s claim against Miss Smolderen and Gibb; Mr. Cerf’s claim against the same persons; and Miss Smolderen’s claim against Cerf and Gibb. Initially, the jury returned a verdict of no cause for action with respect to each of these claims. Judge Foley, however, refused to accept the verdicts, holding
“Ladies and gentlemen, I have the following message from you:
‘Your Honor:
We understand from your charge that if we found Mr. Cerf guilty as to the cause of the accident, Mrs. Cerf is not entitled to damages.
We have found Mr. Cerf’s negligence was the cause of the accident. Therefore, we believe that Mrs. Cerf is not entitled to damages.
We have also found negligence on the part of Miss Smolderen as to her own safety only. Is she entitled to damages from Mr. Cerf?’
With respect to these questions I charge you as follows:
If you find that Mr. Cerf’s negligence was the sole proximate cause of the accident, then Mrs. Cerf would not be entitled to a recovery. But in that event Miss Smolderen would be entitled to a recovery against Mr. Cerf. However, if you find that Miss Smolderen, by her own negligence, proximately contributed to the happening of the accident in any degree whatsoever, she is debarred from a recovery. Because as I indicated to you in my main charge, we don’t measure degrees of negligence.
If, however, you should find that Mr. Cerf, by his negligence, and Miss Smolderen, by her negligence, caused the accident — even though their negligence may have been in unequal degrees — then Mrs. Cerf is entitled to a recovery against Miss Smolderen.”
The jury again retired and thereafter came in with a verdict of $1,350 in favor of Mrs. Cerf. That proved to be a quotient verdict and was set aside; and pursuant to a motion made by Mrs. Cerf, a new trial was ordered on her claim against Miss Smolderen, limited, however, to damages only. Cerf v. Smolderen, 39 N. J. Super. 222 (Law Div. 1956). A substitution of attorneys was then filed, so as to enable her present attorneys to appear for her as defendant only (and their representation is still so confined; no one appears for her, as plaintiff). They then moved for a rehearing of the motion for a new trial. After full argument, the rehearing was denied, and she thereafter, through present counsel, appealed to this court and also moved for leave to appeal. We dismissed the appeal and denied leave, and the
Miss Smolderen’s first point is that the initial verdicts of no cause for action were consistent with the evidence and should now be reinstated. While the other attorneys made certain objections at the time that the court refused to accept these verdicts, Miss Smolderen’s attorney not only made no objection, but (being perhaps more interested in her case as plaintiff) seems to have “insisted * * * that the jury should be sent back for further deliberation.” In any event the point now advanced was not presented by any attorney at that time or later at the original motion for a new trial. Eor relief on this point, she must therefore rely on the rule allowing us to notice plain error. R. R. 1:5-3 (c). (We do not stop to consider the procedural question whether a motion for the rehearing of a motion for new trial can be made nearly three months after the entry of a verdict, in an attempt to raise a wholly new question which could, just as well, have been raised on the original motion. Cf. R. R. 4:61-2; l:27R(c)).
The initial verdicts of no cause for action are not logically irreconcilable. The jury could conceivably have found that no one of the three drivers was negligent, and thus have concluded that no claimant could recover. Perhaps because counsel believed that Cerf and Miss Smolderen were both negligent, this hypothesis has not even been mentioned. There is, however, another basis for reconciling the verdicts. The jury, observing that there were two impacts here (one, when the Cadillac hit the tractor-trailer and, two, when the Packard hit the Cadillac), might have found that Mrs. Cerf’s injuries were the result entirely of the first impact. Upon this second hypothesis, Miss Smolderen rests the argument now under consideration.
The argument depends a great deal upon the jury’s message to the trial court, above quoted, which we may
In any event, we need not involve ourselves in an analysis of this message. Miss Smolderen’s present counsel conceded, below, that the case was not tried upon any theory which would enable the jury to allocate certain of Mrs. Cerf’s injuries to the first impact and certain others of them to the second impact. Still, somehow, he feels that the theory of the trial was such as to permit the allocation of all of her injuries to the first impact and none to the second impact.
But we need not concern ourselves with what may have been the theory of the trial. Eor an examination of the proofs makes it apparent that the whole contention is without substance. The facts of the case have been sharply summarized by Judge Foley, Cerf v. Smolderen, 39 N. J. Super., at 228, supra, and need not be repeated here. They strongly indicate that she was negligent. In fact her present counsel
“* * * there was no appreciable period of time between the contact of the Cerfs’ car with the rear of the trailer and the contact between the Smolderen and Cerf’s car. I mean it was all just like that. And now as a result of the front of the car ramming into the truck and simultaneously the rear of it being bashed in by the Smolderen car, the lady was injured * * * I think it would be like any other case where a ear is involved in a three-car collision in which the injuries are sustained as a result of the combined negligence of two, perhaps three drivers. How could you separate them?”
These remarks of the court touch on legal questions which have not been dealt with in the briefs. See Harper and James, Torts, 706-709, 1305, 1306 (1956). But we need not go into these questions, for we think the case can be disposed of on a factual basis.
The proofs establish, beyond any reasonable question, that the Packard struck the Cadillac a heavy blow, causing this extensive damage all to its rear:
“Right quarter panel, the deck lid hinges, lower deck panel, left rear fender, tail-light, left rear, rear bumpers and brackets, license light, spare wheel carrier, wheel shields, fender mountings.”
The Cadillac prior to the accident was a three months old car in perfect condition. The blow had even a more damaging effect on the front of the Packard, which also was practically a new car. The Packard caromed off the Cadillac, and though it went down an embankment, it nevertheless remained on its four wheels; so far as appears, it struck nothing but the Cadillac. All the damage was to the front of the Packard, and it was so extensive that the car was
The ease, then, is one by Mrs. Cerf, who was not chargeable with negligence, against Miss Smolderen, whose negligence was virtually conceded and whose negligent acts must have injured Mrs. Cerf. The refusal of Judge Foley to accept a verdict of no cause for action in such a case cannot be assailed as prejudicial error. And, of course, it is not plain error within R. R. l:5-3(c). The doctrine of plain error is available with respect to an error committed below only where the probability of prejudice and injustice is so great, and the error so substantial, as to require the appellate court to notice it, even though the matter was not called to the trial court’s attention at the time of the ruling complained of. State v. D’Ippolito, 19 N. J. 540, 548 (1955). There is no basis for reinstating the original verdicts.
Miss Smolderen’s second point is that when the trial court awarded Mrs. Cerf a new trial on her claim against Miss Smolderen, it should have extended the trial to the issue of liability, and not limited it to damages. This point, like the first point, seems io hinge on Miss Smolderen’s claim that her negligence contributed in no respect to Mrs. Cerf’s injuries; and, also like the first point, it raises a question whether Miss Smolderen can claim she was prejudiced by the ruling. Since, as was practically conceded below, there was very strong proof of negligence, and since, as seems evident, her negligence must have been materially injurious to Mrs. Cerf, we think the decision of the court to limit the new trial to damages cannot be regarded as prejudicial error. Cf. Dahle v. Goodheer, 38 N. J. Super. 210, 219 (App. Div. 1955), another case where there was “no close question of liability.”
Furthermore, in connection both with this point and also with the first point, Miss Smolderen is met with ihe rule
Mrs. Cerf’s cross-appeal deals with the second trial, which, as above stated, was limited to damages. She objects to that portion of the trial court’s charge, which has been italicized below:
“There has been some claim by the plaintiff’s attorney that they are claiming $25,000 for damages in this case. A $25,000 award would he highly excessive and would prohahly he set aside hy the Oourt. But she is entitled to be adequately and reasonably compensated for all the injuries, pain and suffering, inconvenience and other . matters that I have told you about to the extent that you find that they were the proximate result of this accident.
As I said to you before you are the sole judges * *
We pass over the fact that objection to this charge was not taken until after the jury had retired. That point has not been raised. Further, see Jelinek v. Sotak, 9 N. J. 19, 25 (1952).
Mrs. Oerf’s counsel states that she sustained a fracture of the left collar bone, two ribs and the right leg and also a badly comminuted fracture of the right ankle and left heel bone. We do not have the testimony taken at the second trial. But at the first trial she said she felt “very uncomfortable” while staying in the hospital for 13 days after the accident (she left the same day her husband left). Her collar bone was painful, and her heel was sore. Erom the hospital she was taken home with two casts on her legs and kept in bed there for two months, thereafter using crutches and later a cane. She was in pain while in bed, bothered particularly by the right ankle; she also went to a hospital
A trial court should exercise much caution so as not in any way to control a jury as to a factual finding within its province. However, in view of the particular injuries sustained by Mrs. Cerf, we do not think prejudice has been shown.
Affirmed.
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