Kulbacki v. Sobchinsky

Weintraub, C. J., Jacobs, J. and Francis, J.

(dissenting). The legal principles are easily stated. The test for submitting a case to the jury is whether men may reasonably disagree as to the facts or the inferences from them. Upon a motion for a new trial, the test is not whether a verdict could have been directed but whether, notwithstanding that men may disagree, the verdict nonetheless is so contrary to the weight of the evidence as to bespeak mistake, partiality, prejudice or passion. R. R. 1:5-3(a). More tersely, the question is whether the result strikes the judicial mind as a miscarriage of justice, and of course in that inquiry the court must necessarily weigh the evidence. Franklin Discount Co. v. Ford, 27 N. J. 473, 490 (1958).

A motion for a new trial must be made to the trial judge before the issue may be offered on appeal. R. R. 1:5-3(a). The reason is that the trial judge has the feel of the case and is better situated than an appellate court to assay credibility when credibility is pivotal. Accordingly a reviewing court must take into account the views of the trial judge insofar as firsthand observation may be significant, but, having done so, it remains the duty of the reviewing court to determine whether in its view there was a manifest denial or miscarriage of justice. Fisch v. Manger, 24 N. J. 66, 80 (1957); *460 Brochin and Sandler, “Appellate Review of Pacts in New Jersey, Jury and Non-Jury Cases,” 12 Rutgers L. Rev. 482 , 503 (1958).

This eight-year-old child, unlike many children of that age we see and read about, was cautious beyond his years in undertaking to cross the intersection. When he reached the corner, the traffic light was red against him. So, he stopped and waited. The defendant Sobchinsky who had been proceeding in the opposite direction, was halted also by the red light. When it changed, every existing circumstance, factual and legal, bestowed on the pedestrian a paramount right to proceed across the street. He was on the crosswalk and so under ordinary circumstances would have the right of way. N. J. 8. A. 39:4-36. The green light gave him the right of way — a right heavily weighted in his favor. “A pedestrian crossing or starting across the intersection on a ‘Go’ signal shall have the right of way over all vehicles, including those making turns, until he has reached the opposite curb or place of safety, and no operator of a vehicle shall fail to yield the right of way to him.” N. J. S. A. 39:4-32. (Emphasis added.) The school-crossing guard who was near the northwest corner and whose 'angle of vision was therefore substantially the same as that of the defendant, saw thé child waiting on the southeast comer and beckoned him to proceed when the light changed. Without regard to the-other circumstances, this signal alone would have given the child the right of way and the right to assume that defendant would permit an uneventful crossing. Moreover, before undertaking the left turn defendant was under a duty to see that such movement could be made with safety, and to give the appropriate hand or mechanical or light signal of his intention to do so. N. J. 8. A. 39 :4-126. As this court has indicated, the making of such a turn required him to seek an opportune moment and to exercise a degree of care in proportion to the increased danger ordinarily incident to that movement. Ambrose v. Cyphers, 29 N. J. 138, 150 (1959). But in spite of the strong protective cloak with which the law had envel *461 oped the child, he was killed on. the crosswalk. To us, the evidence overwhelmingly demonstrates that the death was due to defendant’s negligence. More specifically, it was due to his lack of reasonably effective observation.

Defendant’s testimony revealed he did not make a proper observation. He stopped his truck in the intersection to permit the passage of vehicles coming toward him. He thereupon proceeded on what had to be a curving course, with the side of his truck necessarily bearing in toward the boy who was somewhere to his left. Defendant’s direct testimony discloses he did not observe the entire crosswalk, but rather only that portion which lay straight ahead of him. His testimony on direct consisted solely of the following:

“Q. Now, as you made your turn were' you able to see the crosswalk on the right side of Washington as you started over? A. Tes, sir.

Q. And what did you see there? A. A confectionery store and some parked cars.” (Emphasis added.)

The cross-examination referred to in the majority opinion must be read in the light of the direct testimony, and so read, it did not reveal a better observation.

Here the evaluation of the issue of defendant’s negligence does not depend upon conflicting proof or credibility. The mistake in this case can be found in the prominence given to testimony as to whether the lad had already crossed the center of the street before defendant moved behind oncoming traffic and on to the crosswalk. Whether the boy had or had not is quite irrelevant. If the boy had passed the midway point and reversed his course, he was still entitled to the protection the law accords a pedestrian on a crosswalk with a green light in his favor. The crux of the ease remained the failure of defendant to look for pedestrians on his left, an unwarranted assumption on his part that whoever was where he did not look would, despite the absence of a warning signal, see the truck and avoid it. Or to put it another way, defendant asks that it be speculated that if he had looked *462 when he should have, he would have seen the boy at a place of complete safety from which thereafter the boy suddenly rushed to his death. There was no evidence of any such movement by the boy, and hence no' basis to find that defendant’s carelessness was not a causative factor. And the same lack of proof makes extremely tenuous any suggestion that defendant carried his burden of proving the boy was eontribu-torily negligent.

The Appellate Division found the verdict was a miscarriage of justice. We agree that it was. But if we harbored a doubt, we would not reverse on that account. We should uphold the Appellate Division in its exercise of its supervisory power unless we are persuaded that it was plainly wrong. It should not be a function of our court to review the judgments of the Appellate Division when there is m misapprehension of the controlling principles of law and when the issue for us would be at best a debatable question whether the facts justified its action.

We would therefore affirm the judgment of the Appellate Division.

For reversal — Justices Proctor, Hall, Schettino and Haneman — 4.

For affirmance — Chief Justice Weintbaub, and Justices Jacobs and Francis — 3.