GENOVEVA HERNANDEZ v. REGINALD ALCINDOR et al.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6073-04T16073-04T1

GENOVEVA HERNANDEZ,

Plaintiff-Appellant,

v.

REGINALD ALCINDOR and JONAS

ALCINDOR,

Defendants-Respondents.

_________________________________

 

Argued March 22, 2006 - Decided July 14, 2006

Before Judges Wecker and Fuentes.

On appeal from Superior Court of

New Jersey, Law Division, Middlesex

County, Docket No. MID-L-3857-00.

Phillip C. Wiskow argued the cause for

appellant (Sheffet & Dvorin, attorneys;

Mr. Wiskow, on the brief).

David J. Dering argued the cause for

respondents (Leary, Bride, Tinker &

Moran, attorneys; Mr. Dering, of counsel

and on the brief).

PER CURIAM

Plaintiff Genoveva Hernandez appeals from a jury verdict finding her fifty-five percent negligent and defendant forty-five percent negligent, in this automobile accident case, and from the trial court's denial of her motion to set aside the verdict as being against the weight of the evidence. The result of the verdict thus prevented plaintiff from obtaining any economic recovery. The case had been brought before a jury as a result of defendant's application for a trial de novo, after an arbitrator found liability at 25% to 75% in plaintiff's favor.

The case was tried on liability only. The parties had previously stipulated to use defendant's $100,000 insurance coverage limit as the quantum of damages. This was an intersection accident. Plaintiff testified that she came to a stop sign, looked both ways, and proceeded into the intersection to turn right until she collided with defendants' vehicle that was traveling in the same direction plaintiff was attempting to turn.

Plaintiff's car struck the front passenger side of defendant's car at an angle. Defendant was returning to work, after an extensive lunch break, and proceeded across a private road servicing a condominium complex. Plaintiff argues that the trial court committed reversible error by refusing to charge the jury with N.J.S.A. 39:4-90, which describes the duty of two drivers who enter an intersection at the same time. Specifically, the statute provides that:

The driver of a vehicle approaching an intersection shall yield the right of way to a vehicle which has entered the intersection. When 2 vehicles enter an intersection at the same time the driver of the vehicle on the left shall yield the right of way to the driver of the vehicle on the right.

The driver of a vehicle within an intersection intending to turn to the left shall yield to a vehicle approaching from the opposite direction which is within the intersection or so close thereto as to constitute an immediate hazard, but the driver having so yielded, and having given a signal when and as required by law, may make the left turn; and other vehicles approaching the intersection from the opposite direction shall yield to the driver making the left turn.

[N.J.S.A. 39:4-90]

Judge Happas denied plaintiff's request because the statute applies only to intersections that are not controlled by a traffic device. Here, as plaintiff acknowledged, the intersection is controlled by stop signs. We agree with Judge Happas. The clear language of the statute refers only to the protocol motorists must follow in traversing an intersection that does not have any traffic devices, such as a stop sign.

Confronted with the stop sign, plaintiff was required to come to a complete stop, and then "proceed only after yielding the right of way to all traffic on the intersecting street which is so close as to constitute an immediate hazard." N.J.S.A. 39:4-144. The court thus correctly charged the jury with the applicable law. Because defendant emerged from a private road, the court also correctly included in the charge the protocol outlined in N.J.S.A. 39:4-66b.

Plaintiff also contends that the court erred in refusing to define the word "highway," as used in N.J.S.A. 39:4-66. Plaintiff waived her right to appeal this aspect of the jury charge on grounds other than plain error, because she did not raise this issue during the charge conference, or otherwise object based on the court's failure to include a definition of "highway" as part of the charge. Gebroe-Hammer Assocs. v. Sebbag, 385 N.J. Super. 291, ___ (App. Div. 2006) (slip op. at 5); R. 1:7-2.

We discern no plain error. Given the facts of this case, there is no basis to conclude that omitting a definition of "highway" as part of the jury charge concerning N.J.S.A. 39:4-66 was clearly capable of producing an unjust result. R. 2:10-2.

Finally, plaintiff argues that the jury verdict was against the weight of the evidence. We disagree. "The trial court's decision on such a motion shall not be reversed unless it clearly appears that there was a miscarriage of justice under the law." R. 2:10-1. State v. Brims, 168 N.J. 297, 305 (2001). We affirm substantially for the reasons expressed by Judge Happas, when she denied plaintiff's motion for a new trial.

[The] issues that were present in this trial as to whether or not the plaintiff stopped at the stop sign and made proper observations. The Court -- this is not a situation where the Court did not find that the defendant was not all responsible for the happening of this accident. In fact, the Court found that the defendant was forty-five percent responsible. However, after weighing the credibility of the witnesses, observing their demeanor and the manner in which they testified, the Court found that the plaintiff was ten percent more responsible for the happening of the accident than the defendant. This Court finds, after reviewing the evidence, that there's no need to grant [plaintiff's] motion, that the jury spent an inordinate amount of time deciding this [case.] They thought long and hard about this case. This is not a situation where the jury rendered a verdict after ten or fifteen minutes. They spent over an hour deciding this case.

 
Affirmed.

This statute requires a motorist "emerging from an alley, driveway, garage, or private road or driveway, [to] stop the vehicle immediately prior to entering or crossing a highway, and [to] proceed to enter or cross the highway only after yielding the right of way to the traffic on the highway, if the traffic is so close as to constitute an immediate hazard."

Furthermore, because this issue was not raised before the trial court, plaintiff's counsel was required to so indicate in the appellate brief's point heading. R. 2:6-2(a)(1). Counsel's failure to comply with the requirements of the Rule is subject to sanctions, which may include "dismissal of the appeal . . ., imposition of costs or attorney's fees or such other penalty as may be assessed personally against the attorney." R. 2:9-9. In this instance, we decline to impose any sanctions.

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A-6073-04T1

July 14, 2006