JEFFREY E. DIEHL v. GRACE GILLETTE

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4590-12T3

JEFFREY E. DIEHL,

Plaintiff-Appellant,

v.

GRACE GILLETTE,

Defendant-Respondent,

and

NEAL MATHEWS, DC, BACK CARE

PROFESSIONALS, LLC, and NEW JERSEY

MANUFACTURERS INS. CO.,

Defendants.

_____________________________________________________

September 18, 2014

Submitted September 9, 2014 Decided

Before Judges Fisher and Nugent.

On appeal from the Superior Court of New Jersey, Law Division, Mercer County, Docket No. L-3037-09.

Richard A. Dunne, attorney for appellant.

Cascio & Callegher, attorneys for respondent (Kathleen T. Eustace, on the brief).

PER CURIAM

Plaintiff Jeffrey E. Diehl commenced this action for personal injury damages resulting from his vehicle's collision with a vehicle driven by defendant Grace Gillette. A jury found both drivers at fault, but plaintiff slightly more at fault than defendant,1 leading to a judgment in defendant's favor. Plaintiff appeals only the denial of his new trial motion2 and the pre-trial determination that barred him from presenting evidence of a lost wage claim. We do not reach the lost wage issue because we find insufficient merit in plaintiff's first point to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). We add only the following brief comments.

The jury heard evidence that, on February 1, 2008, plaintiff was traveling south on Brockton Road in Hamilton Township when he arrived at a stop sign where Brockton meets Klockner Road. Plaintiff's intention was to turn left, requiring that he cross Klockner's single lane of westbound traffic. A short distance west from this location was Klockner's intersection with Hamilton Avenue. The traffic heading west on Klockner was stopped in front of plaintiff's vehicle, apparently waiting for the light at Hamilton to turn green.

Plaintiff testified he came to a full stop and another driver, stopped in Klockner's westbound traffic, waved him across. Plaintiff proceeded in front of this westbound vehicle and, as he attempted to turn left to travel east on Klockner, he came into contact with defendant's vehicle, which had made its own lane of traffic toward Klockner's designated lane for turning left on Hamilton Avenue.

In considering plaintiff's argument that the judge erred in denying his motion for a new trial, we observe that the evidence consisting mostly of the testimony of plaintiff and defendant more than amply supported the jury's verdict that both parties were negligent. Defendant's own testimony demonstrated she had, in essence, created her own lane of traffic at a location where there was only one demarcated lane, which was occupied by other westbound traffic, as she approached in the near distance the lane for turning left onto Hamilton. In his charge concerning defendant's operation of her vehicle, the judge advised the jury to consider not only general principles of law that govern drivers on our public roadways, but also the careless driving statute, N.J.S.A. 39:4-97, and the statute that requires drivers to remain within marked lanes, N.J.S.A. 39:4-88.

With regard to plaintiff's claim of coming to a full stop and then not proceeding onto Brockton until looking both ways, the judge instructed the jury on the general obligations imposed on drivers and the careless driving statute, N.J.S.A. 39:4-97, as well as the statute governing a driver's duties when encountering stop signs, N.J.S.A. 39:4-144(a), which not only requires a full stop, but also that the driver proceed further "only after yielding the right of way" to all the intersecting roadway's vehicular traffic which is "so close as to constitute an immediate hazard."

Plaintiff does not argue that the trial judge provided the jury with incorrect legal principles. Indeed, the judge thoroughly and correctly instructed the jury, and in a most even-handed way in this close case. Defendant instead argues there was no evidence that he acted inconsistently with the applicable statutes or common law obligations described by the judge.

That is, plaintiff claims there is no evidence to suggest he did not act in compliance with N.J.S.A. 39:4-144(a), because he testified he came to a full stop at the stop sign, looked both ways, preceded into the space made for him by the driver who waved him forward, looked both ways again, and then proceeded further onto Klockner when struck by defendant's vehicle. He claims there was no dispute about this because no witness contradicted his testimony, alluding to the fact that defendant testified she never saw plaintiff's vehicle until they collided; accordingly, defendant was unable to say anything about how plaintiff operated his vehicles or the observations plaintiff may have made prior to the collision. Plaintiff argues that the lack of direct evidence to contradict his version required the jury to conclude that plaintiff's version was undisputed and precluded the jury from finding him negligent.

Plaintiff's argument fails to consider that the jury was entitled to reject his testimony even if no other witness directly contradicted it. Moreover, the jury was entitled to infer that plaintiff must not have properly yielded as he entered Klockner because the collision in fact occurred. In other words, the jury was entitled to assume plaintiff failed to comply with N.J.S.A. 39:4-144(a) because, if he had complied, he would have seen defendant's vehicle and avoided the accident.

Plaintiff also relies on the rubric, as part of his contention that there was no evidence of his negligence, that the mere happening of an accident does not bespeak negligence, citing Malzer v. Koll Transp. Co., 108 N.J.L. 296, 297 (E. & A. 1931). This argument misses the point. The jury was entitled to consider not only the direct evidence provided by the witnesses but also any reasonable inferences arising from the evidence, the occurrence itself, and their own common sense. The evidence entitled the jury to find that either or both of the parties were negligent and either or both of their negligent conduct proximately caused the accident. Indeed, it is difficult to conclude from an impartial review of the evidence anything other than that both parties were negligent and that they both contributed to the occurrence. For the jury, the far more difficult task was ascertaining the degree to which these parties' negligent acts contributed to the occurrence; the jury's non-unanimous determination that the parties were nearly equally at fault is demonstrative of that difficult decision.3 Plaintiff's argument on appeal, however, does not address that determination. He does not contend the jury could not come to the conclusion if he were found negligent that his fault was greater than defendant's.

In ruling on plaintiff's motion for a new trial, the trial judge correctly honored the jury's role as the sole judges of the facts, see R. 4:49-1(a); Dolson v. Anastasia, 55 N.J. 2, 6 (1969), and applied the presumption of correctness that attaches to jury verdicts, see He v. Miller, 207 N.J. 230, 250 (2011); Baxter v. Fairmont Food Co., 74 N.J. 588, 598 (1977), to which we must also adhere, He, supra, 207 N.J. at 250. In addition, we are required to defer to the judge's own feel of the case because he was present during the trial, whereas we have only examined a static transcript. Application of these principles compels our rejection of plaintiff's argument that the judge erred in denying his motion for a new trial.

Affirmed.

1The jury found plaintiff fifty-one percent and defendant forty-nine percent responsible for the collision.

2In this regard, plaintiff presents an argument under the following single point:

DESPITE SAYING "THERE WAS EVIDENCE ON THE RECORD" FROM WHICH A REASONABLE JUROR COULD HAVE CONCLUDED THE PLAINTIFF HAD FAILED TO PROPERLY YIELD AS THE BASIS FOR DECIDING TO VALIDATE THE JURY'S VERDICT THAT PLAINTIFF WAS FIFTY-ONE (51%) PER CENT NEGLIGENT, THE TRIAL JUDGE'S WRITTEN OPINION IS CONSPICUOUS FOR ITS FAILURE TO IDENTIFY SPECIFICALLY, THE EVIDENCE UPON WHICH THIS CONCLUSORY STATEMENT IS BASED, WHICH IS DUE, NOT SURPRISINGLY, TO THE FACT NO SUCH EVIDENCE WAS EVER PRESENTED BY THE DEFENDANT, AND BECAUSE THE TRIAL JUDGE'S DENIAL OF PLAINTIFF'S MOTION FOR A NEW TRIAL WAS PREMISED SOLELY ON EVIDENCE THAT NEVER EXISTED, THE DECISION TO DENY THE PLAINTIFF A NEW TRIAL WAS PLAIN ERROR.

3The jury was unanimous on all questions except this allocation, which was decided by a five-to-one vote.