Linzmayer v. Phair

156 A. 918, 9 N.J. Misc. 1154, 1931 N.J. Sup. Ct. LEXIS 107

• Court: Supreme Court of New Jersey
• Decided: November 16, 1931
• Status: Published

Opinion

Per Curiam.

This is an appeal by the plaintiff from a judgment against him and in favor of the defendant on a directed verdict in the Monmouth County Common Pleas Court.

The four grounds of appeal stated by the plaintiff as reasons for reversal may be resolved into the single proposition that the court erred in directing the jury to bring in a verdict for the defendant. The reason given by the court for so ruling was that the plaintiff was guilty of contributory negligence in that the negligence of the defendant in driving, as the evidence was, at the speed of thirty-five miles per hour through a fog so heavy that the headlights of the car did not illuminate to the view of the plaintiff, sitting in the front seat beside the driver, for a distance of more than seven or eight feet ahead was imputable to the plaintiff in that the latter, though knowing the danger, did not bring that danger to the attention of the defendant. Aside from the incidental facts that the plaintiff was not himself an automobile driver with such peculiar knowledge of driving conditions as comes to such a one, and had not the benefit of the clearer vision that the windshield wiper brought to the man at the wheel, there arc further salient facts that take this case out of the realm where the court is justified in finding contributory negligence as a matter of law.

Plaintiff and defendant, friends, were driving in defendant’s car, with defendant at the wheel, through a dense fog, by night, and at a speed, as already stated, of approximately thirty-five miles per hour. At an intersecting highway, through which the route of the parties lay, were two corner lights, both of which focused on the intersection. As defendant attempted to make the turn and lifted his foot from the accelerator to slow up the car, the accelerator stuck. Plaintiff testifies positively that that incident happened, and defendant says that he believes it did. Plaintiff further testifies that defendant reached down to pull the accelerator up with his hand and in so doing lost control of the car. Defendant testifies that he “took his eyes off the road for a second to pull it up” with his foot. It was at that instant that the car left the road and hit a tree, with injury to the plaintiff. To what extent did the fixed lights at the intersection, regardless of the projecting power of the automobile headlights, give the driver fair warning of his location? It is common knowledge that the extent to which a light at or near the observer will illuminate the surroundings by projection is not a criterion as to the illumination given by a, more distant light over the space between it and the observer. Did defendant’s acts with respect to the accelerator and his handling of the car in that emergency constitute negligence and, if so, was that crisis entirely or measurably independent of the fog condition ? We think that those and like questions were clearly for the jury to determine and that the court erred in taking that function from them.

Judgment below will be reversed.