The opinion of the court was delivered by: DUSEN
Plaintiff alleges that it was reversible error for the court to read paragraph 5 of defendant's Points for Charge as modified by the trial judge.
A careful examination of the charge discloses that it correctly stated the applicable principles of law and that the language of which plaintiff complains does not constitute reversible error when read in conjunction with the language of the charge as a whole. The charge clearly pointed out that the bus company would not be absolved of liability merely because the driver of the truck was negligent.
The charge continued to point out that 'the defendant is a common carrier of passengers and is obliged to exercise a high degree of care to protect its passengers from danger that foresight could anticipate.'
See Davis v. Public Service Coordinated Transport, 1934, 113 N.J.L. 427, 174 A. 540; Garvey v. Public Service Co., 1948, 136 N.J.L. 533, 57 A.2d 14. The charge then emphasized in two places (pp. 8 and 9) that the issue for decision by the jury was whether the bus driver acted as a reasonably prudent man, owing this high degree of care to his passengers, would have operated it 'under all the circumstances.' There was no attempt to deprive the jury of considering the possibility that the bus driver might have taken evasive action, such as moving into the lane to the left of him, but the jury was specifically instructed to consider 'all the circumstances.'
Even if defendant's paragraph 5, as modified by the trial judge, was misleading, the court agreed to the comments on this paragraph made by counsel for plaintiff at the conclusion of the charge, using this language in the presence of the jury after counsel for plaintiff had made his objection in open court:
Again, at the bottom of page 23, the court instructed the jury 'that is up to you to determine under all the circumstances how you find that this ...