author: Per' Curiam.

text:
    PHILIP LOMBARDO, PROSECUTOR, v. MAYOR AND COUNCIL OF THE BOROUGH OF LODI, RESPONDENT.
    Submitted October term, 1928
    Decided January 3, 1929.
    Before Justices Minturn, Black and Campbell.
    For the prosecutor, Benjamin P. Galanti.

    For the respondent, Walter G. Winne.

   Per' Curiam.

This writ brings up for review the proceedings upon the adoption of an ordinance of the borough of Lodi, in the county of Bergen, which was finally passed at a meeting at which the mayor and five councilmen were .present, three councilmen voting in favor of its passage and two against.

The contention of the prosecutor is that the votes of four councilmen, being a majority of the whole council, were necessary, except in the case of a tie vote of three councilmen, for adoption and three opposed, which situation would require the vote of the mayor in favor of adoption.

The insistence of the prosecutor is that the Borough act of 1897 (Pamph. L. 1897, p. 285; 1 Comp. Stab., p. 226 at p. 238), by section 26, requires the vote of a majority of the whole council to adopt an ordinance and that although this court in Public Service Railway Co. v. General Omnibus Co., 93 N. J. L. 344, held that “An act concerning municipalities” (Home Rule act—Pamph. L. 1917, p. 319, as amended Pamph. L. 1918, p. 478) presented a new method for the adoption of ordinances in all municipalities, by necessary implication repealing all statutes providing a different method and further held that the adoption of an ordinance by a majority of a quorum present was sufficient, yet by an amendment of section 26 of the General act relating to boroughs in 1921 (Pamph. L. 1921, p. 803) again requiring the vote of a majority of the whole council to pass an ordinance such legislation being subsequent to the Home Eule acts of 1917 and 1918, supra, superseded such act and amendment and made inapplicable the rule laid down in Public Service Railway Co. v. General Omnibus Co., supra, and at the time of the adoption of the ordinance in question, namely, April 23d, 1928, required the vote of a majority of the whole council.

Up to this point the prosecutor and respondent are not in disagreement but respondent asserts, and correctly so, that subsequent to the 1921 amendment of section 26 of the Borough act, section 1 of article 20 of the Home Eule act, respecting ordinances and the adoption thereof was amended (Pamph. L. 1926, p. 378) again evincing the intention of the legislature as was said in Public Service Railway Co. v. General Omnibus Co., supra, “to do away with the differentiation of the number of votes required * * * and to establish a uniform rule by placing the passage of all ordinances by a majority vote in all municipalities whether under the form of commission government or under mayor and council or any other form of municipal rule. * * * The fact that the Home Eule act makes no provision whatever as to what vote shall be sufficient for the passage of an ordinance, or the transaction of any other lawful business, is a cogent circumstance tending to establish that the legislature intended that the common law rule, that a majority vote of the members of the municipal body constituting a quorum shall be sufficient for the purposes mentioned. * * * We are inclined to the view that where the legislature by a general statute, as here, covered the entire subject of municipal powers and procedure thereunder, as granted to the municipalities of this state, failed to make any provision for the number of votes which shall be necessary for the passage of an ordinance or the transaction of any other lawful business, that the law making power intended to adopt the common law rule, as above stated, and hence, anj^ exceptions existing in a former statute, to the common law rule, and which is inconsistent with such rule is impliedly repealed, unless the exception is in express terms retained by such general statute.”

It is apparent, therefore, that at the time of the adoption of the ordinance in question, the statutory requirement was the same as at the time of the foregoing decision of this court and that the rule therein laid down is controlling and the ordinance was properly and legally adopted.

It is urged by the respondent that the writ should be dismissed because there is no proof that the prosecutor has a personal or property interest entitling him. to attack the action of the municipal body. This is without legal merit, as the prosecutor appears as a taxpayer, and Jackson v. Gloucester City, 6 N. J. Mis. R. 451, is controlling.

The proceedings under review are therefore affirmed, for the reason previously given, and the writ dismissed, with costs.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    CHARLES J. SMITH, PLAINTIFF-APPELLEE, v. ERIE RAILROAD COMPANY, INCORPORATED, DEFENDANT-APPELLANT.
    Decided January 4, 1929.
    Before Justices They chard, Kalisch and Lloyd.
    Eor the appellant, Hobart & Minará.

    For the appellee, Iloive & Davis (Edward L. Davis, of counsel).
   Per Curiam.

There was a judgment for the plaintiff below, against the defendant below in the District Court of the city of Orange, for the sum of $290, and costs. The case was tried before the court, sitting with a jury.

The facts, out of which grows the present controversy, are as follows: , On March 31st, 1928, the plaintiff was driving an automobile truck in a northerly direction on Kearny street, East Orange. As he approached the crossing on Kearny street, and within about a hundred feet of the crossing, he came to a complete stop. There were two other automobiles ahead of him, standing still, and a train of the appellant company was in the act of passing over the crossing.

According to the testimony of the plaintiff, the driver of the truck, when he approached the track and brought his truck to a stop, saw no flagman at the crossing, the view of the latter being obscured by the passing train. But after the train had completely passed over the crossing, the plaintiff observed the flagman with a “stop sign” in his hand. The flagman stepped to one side of the road and beckoned to the occupants of the three automobiles in waiting, to come on. The two automobiles ahead of the plaintiff’s truck, and the plaintiff himself, in obedience to the flagman’s signal, proceeded onward, and when the plaintiff’s truck got on the track, a train, coming from the opposite direction struck the plaintiffs truck and damaged it.

Of the seven specifications of errors presented by the appellant for a reversal of the judgment, five are relied on to that end.

Eirst, it is argued that the trial judge erroneously denied the motion for a nonsuit interposed on behalf of the appellant at the close of the plaintiff’s case. We think the motion was properly denied. The appellant’s flagman stood in the place where he could observe the condition of the tracks, and the movements of trains, coming in either direction. The plaintiff was justified in relying upon the invitation given by the flagman to come ahead, and that it was safe for him to cross the tracks.

It is conceded, that the plaintiff kept his eye on the flagman from the time he started, up to the time the truck was struck by the train of the appellant company, which latter event, according to the testimony, was due to the negligence of the flagman, who, by his invitation to the plaintiff to come on brought him into a place of danger. At any rate, under the statute of 1909 the alleged contributory negligence of the plaintiff is for the jury to decide.

It is further urged, on behalf of the appellant, that the nonsuit should have been granted, because there was no evidence of damage done to the truck. This assertion is contrary to the facts.

The second specification of error relied on for a reversal is that the court erroneously denied the motion of defendant appellant for a direction for a verdict in its favor at the close of the entire case.

The same reasons which were urged for the nonsuit were presented and argued for a directed verdict for the defendant-appellant. There was no change in the posture of the case from what it was at the close of the plaintiffs case, and the question of negligence of the defendant-appellant, and of the alleged negligence of the plaintiff, were factual questions for the jury to determine.

The third specification of error relied on for reversal is, that the court erroneously permitted the following questions to be put to the witness, Haberlin, by plaintiff’s counsel: “Did you make an estimate?” “What did you find to be the condition of the body of that truck ?”

Haberlin was a body-builder of automobiles, and had been engaged in the business for forty odd years. He examined the truck about two weeks after the accident. There was proof that the truck was in the same condition, at the time Haberlin examined it, as it was immediately after the truck was hit by the train.

The testimony showed that the body of the truck was broken up. The argument made, on behalf of appellant, against the admissibility of the evidence which was offered is, that there was no evidence of the condition of the automobile before the accident. This assertion is also contrary to the fact.

Lastly, it is argued that the trial judge erroneously charged the jury: “If you decide that the defendant was negligent, and that the plaintiff did not contribute to the accident, on the question of damages, you would take into consideration the evidence of the witnesses on that point and fix such amount as you consider has been proved.”

Counsel nowhere points out in what respect any of these statements is erroneous in law. We find no error.

Judgment is affirmed, with costs.


author: Pee Cueiasl

text:
    AMBROSE MUNDY AND MIDDLESEX WATER COMPANY, PROSECUTORS, v. THE TOWNSHIP OF RARITAN, THE BOARD OF COMMISSIONERS OF THE TOWNSHIP OF RARITAN AND W. G. FRITZ COMPANY, INCORPORATED, RESPONDENTS. AMBROSE MUNDY AND MIDDLESEX WATER COMPANY, PROSECUTORS, v. THE BOARD OF CONSERVATION AND DEVELOPMENT OF THE STATE OF NEW JERSEY, THE BOARD OF COMMISSIONERS OF THE TOWNSHIP OF RARITAN AND THE CITY OF PERTH AMBOY, RESPONDENTS.
    Argued October term, 1928
    Decided January 3, 1929.
    Before Justices Mintukn, Black and Campbell.
    Bor the prosecutors, Frank Bergen.

    Bor the respondent city of Perth Amboy, Harry 8. Medinets.

    Bor the respondent board of conservation and development, Edward L. Katzenbach.

    Bor the respondent township of Baritan, Martin & Beiley and Thomas L. Hanson.

    Bor the respondent W. G-. Britz Company, Incorporated, Borden D. Whiting.

   Pee Cueiasl

Ail understanding of these matters requires a somewhat extended recital of facts and events.

The prosecutor Middlesex Water Company is a corporation authorized and engaged and is a taxpayer therein. The other prosecutor, Ambrose Mundy, is the superintendent of the water company and is also a taxpayer in the township of Raritan.

A section of the township known as Piscataway has a population of four thousand to four thousand five hundred; is growing rapidly and has no water supply.

It appears that in June, 1927, the township went under a commission form of government and that immediately after the commissioners were elected and organized steps were taken to secure a water supply for that section' of the township before referred to.

The prosecutor, Middlesex Water Company, was approached upon the subject and it appears that in January, 1928, made a proposition to supply water to certain portions of the territory desired by the township authorities to be served, and estimated the cost of laying mains, &c., at something over $200,000, and required that the township should provide fifty per cent, of the outlay, without interest or return except repayment of principal over a long term and upon uncertain conditions and happenings. This proposition was declined by the township authorities, because it would seem that the service contemplated did not cover sufficient territory; that the township considered that the proposed money advancement would be illegal and because of dissatisfaction with the service being furnished by the water company to other portions of the township.

The township commissioners then turned their attention to the question of constructing and laying the necessary mains, service pipes, &c., as a municipal undertaking and the purchasing of water to be supplied through such distributing system to the inhabitants.

The water comp airy, through Mundy, its superintendent, was again approached with the proposition of furnishing water to the township to be by the latter distributed through a distribution system owned by it, and such proposition was declined.

Either prior or immediately thereafter negotiations were opened with Perth Amboy to purchase water from it to be supplied through a distribution system to be constructed by the township. Upon ascertaining that satisfactory arrangements could be made to thus secure and purchase water an ordinance providing for the making of a contract with Perth Amboy and for the construction of a distributing system was introduced on April 7th, 1928, and adopted April 27th, 1928.

The water company asserts that in January of 1928 its directors went over the territory and decided to lay the mains and furnish the service and directed its superintendent, Mundy, to purchase the necessary pipe and proceed with the work, and that in accordance therewith pipe was placed upon the ground and the company was about to place other pipe, expecting to commence the construction work in the spring, when it learned of the determination of the township to construct its own system and purchase water from Perth Amboy, and it thereupon suspended work awaiting the outcome of such movement.

After the adoption of the foregoing ordinance bids for construction work thereunder were advertised for and were received June 1st, 1928. On June 8th, 1928, the contract was awarded to the respondent W. G. Fritz Company, Incorporated, the lowest bidder, for $203,565.30, and the mayor and clerk authorized to enter into the necessary contract. This contract is dated June 15th, 1928.

A contract for the supply of water was entered into with Perth Amboy—this bears two dates—June 20th, 1928, and July 16th, 1928. This contract was approved and ratified by the township of Raritan by a resolution adopted July 20th, 1928.

On July 11th, 1928, the prosecutor Middlesex Water Company filed a bill in Chancery, verified by the affidavit of the prosecutor Mundy, praying that the contract between the township of Raritan and W. G. Fritz Company, Incorporated, be decreed to be illegal and void and that the performance thereof by either party and the expenditure of money by the township or its board of commissioners in pursuance thereof be permanently enjoined.

On July 21st, 1928, a writ of certiorari was allowed bringing up for review the contract of W. G. Fritz & Company. This was upon notice under date of July 17th, 1928. In this proceeding Ambrose Mundy was the only prosecutor. On September 22d, 1928, the Middlesex Water Company applied to be and was admitted as a party prosecutor, and it seems that sometime prior thereto the bill in Chancery before referred to had been dismissed because it presented a cause for which there was an adequate remedy at law.

At the opening of this term of this court, under a rule to show cause previously allowed, a writ of certiorari was allowed to the same prosecutors bringing up for review the proceedings of the board of conservation and development approving the contract for a supply of water between the city of Perth Amboy and the township of Earitan, and by order of this court both proceedings were consolidated and directed to be argubd together.

The reasons filed under the original writ (attacking the Fritz contract) are four in number:

(1) That prior to the time such contract was executed no application had been made nor consent obtained by Earitan township from the North Jersey district water supply commission as required by Pamph. L. 1915, ch. 241.

(2) That at such time no application had been made for or obtained from the board of conservation and development under Pamph. L. 1910, p. 551; 4 Comp. Stat., p. 5801 (board of conservation and development being constituted under Pamph. L. 1915, p. 428, § 5; 1 Cum. Supp. Comp. Stat., p. 621, to take place of state water supply commission) to divert water from any source or for approval of plans to construct water works.

(3) That at such time the township was not providing for a supply of water in the manner authorized by “An act concerning municipalities” (Pamph. L. 1917, ch. 152), and .therefore had no power to execute such contract or to lay mains in the streets, &c.

(4) Because of the foregoing the township could not use the mains proposed to be laid under such contract and the ■expenditure thereundei and therefore would be illegal.

Another or fifth reason was added by permission of the ■court on October 1st, 1928, viz.:

(5) The Raritan river is a tidal, navigable stream, and permission of the United States war department and the board of commerce and navigation of New Jersey has not been obtained to lay a main across said river, by which to ■obtain a supply of water from Perth Amboy under its contract with Raritan township, dated July 16th, 1928.

The answer to reasons one to four is that at the time of the execution of the Eritz contract the consents referred to in reasons one and two had not been obtained nor had they been obtained at the time of the allowance of the writ, but, ■saj^s the township, in answer to all four reasons, we are proceeding under the act concerning municipalities (Pcmph. L. 1917, ch. 152), particularly article 52, section 3, subdivision 6 of section 1 and section 15, and we are not diverting water by means of a new supply but purchasing a surplus from Perth Amboy, and we have now, subsequently to the making of the Eritz contract and the allowance of the writ of certiorari obtained the consent required by said act, and we are not controlled by nor required to proceed under Pamph. L. 1910, p. 551, supra. Further, that the contract for the purchase of water from Perth Amboy as well as the work f constructing the distributing system covered by the Eritz contract were authorized by the ordinance of April 27th, 1928, the validity of which ordinance is not attacked by these proceedings.

The first question demanding consideration is whether the •consents of the department of conservation and development and the North Jersey district water supply commission not having been obtained before the letting and execution of the •contract with W. G. Eritz Company, invalidated that contract, or expressing it otherwise, was the township without legal authority to so contract.

Section 3, article 32 of the Home Eule act, supra, provides—•

“Every municipality providing for the supply of water in one or more of the methods aforesaid shall have power to lay and maintain pipes and mains, &c.”

Subdivision b of section 1 provides—

“Any municipality may enter into a contract * * * with .any other municipality in this state having water works * * * to obtain a supply of water * * *.”

Section 15 provides—

“It shall be lawful for the governing body of any municipality owning or controlling water works to enter into and make a contract * * * with any municipality * * * to furnish a supply of water for such other municipalities .and their inhabitants, for public and private uses for the term ,of a year or years; provided there shall first be obtained the .approval of the department of conservation and development .or other state board or department having jurisdiction of .such matters * *

The construction to be placed upon section 3, supra, as •urged by the township, is that the conclusion of its governing body and particularly the formal determination through the ordinance of April 27th, 1928, and the authorization thereby given its mayor and clerk to enter into a contract with Perth Amboy for the purchase of water for the public and private uses of the township is a “providing” for such supply as contemplated by that section.

The contention of the prosecutors is that this was not suffitcient, but that all the consents before mentioned must be obtained in advance of entering into a contract for the laying of mains, &c.

We are inclined to think the contention of the township is •sound. At least it seems to be logical from a practical standpoint. If, before the contract with the Eritz company could be entered into, it was necessary by the ordinance of April 27th, 1928, to authorize the execution of a contract with Perth Amboy, and to have the consents in question, why •with equal force may it not be urged that it was necessary !o actually enter into and execute the contract with Perth Amboy and why may it not be well argued that all of this should have taken place before bids were called for or even before the township could' legally determine by ordinance to construct a distributing system.

Under the facts of the case a situation was presented where, under section 8, article 32 of the Home Eule act, supra, the township of Earitan was “providing for the supply of water.”

The prosecutors further contend, as already stated, that the application to the board of conservation and development should have been made under Pamph. L. 1910, p. 551, supra, and the proceeding was one controlled by Oakland v. Board of Conservation and Development, 98 N. J. L. 806. With this we do not agree, but, on the contrary, conclude that the matter is one controlled by the provisions of the Home Eule act, supra.

This we think also answers the contention as to the alleged irregularity of the proceedings before the board of conservation and development, which, as to a proceeding of this character we do not find to have been irregular.

Such proceedings worked no prejudicial harm to the prosecutors.

That this consent and that of the North Jersey district water supply commission were obtained subsequent rather than prior to the making of the contract with Perth Amboy and W. G. Eritz and Company is, we think, immaterial. At least no injury has come to the prosecutors or any taxpayer of Earitan township because thereof.

As to the contention of the prosecutors that the approval of the state board of health has not been obtained, the answer is that our attention has not been directed to, nor have we been able to discover, any statutory requirement for such an approval where one municipality is contracting to purchase surplus water from another.

The remaining contention of the prosecutors is that the consent of the war department of the United States and the board of commerce and navigation of this state to lay a main across the Earitan river in order to permit Perth Amboy to perform its contract with Earitan township to make delivery of water to the latter on the north bank of that river has not been obtained.

We think this is not important and certainly not vital in its effect upon the Eritz contract or for that matter upon the contract with Perth Amboy.

While it may be true that the plan presented by the contract with Perth Amboy is that it will make delivery of the water under its contract to Earitan township by constructing and laying a main from the south to the north shore of the Earitan river which would require these consents, or one of them, yet the proofs show that this is not the sole means by which Perth Amboy can perform its contract and there is nothing showing or even indicating that such contract cannot or will not be performed if the necessary consents to lay the main under the river are not obtained.

We conclude that the matters brought up by both writs should be affirmed and the writs dismissed.

The respondents urge and have moved that both writs should be dismissed upon the ground of laches.

The Eritz contract was executed June 15th; 1928.

The writ of certiorari to review it was not allowed until July 21st, 1928, and notice of the application of such writ was not given until July 17th, 1928, and in the meantime Eritz and company had expended and obligated to expend considerable sums of money for and toward the carrying out and performance thereof.

On September 5th, 1928, the board of conservation and development approved of the proposed contract between Perth Amboy and Earitan township subject to certain conditions, the acceptance of which by both municipalities was filed September 20th, 1928.

Notice of an application for a writ to review the proceedings was given September 25th, 1928. This was heard September 29th, 1928, and the justice hearing the matter allowed a rule to show cause returnable before this court on the opening of the present term.

If the only matter before us was the Eritz contract we would be inclined to agree with the respondents that the writ should be dismissed upon the ground of laches because we do not find the proofs in any wise excuse the delay of the original prosecutor, Mundy, in making an earlier and more expeditious application for the writ in that case.

This we cannot say as to the application for the second writ.

We are inclined to the conclusion that the writs should not be dismissed upon this ground but upon the merits as heretofore indicated.


author: Pee CuBiAvr.

text:
    HILLSIDE BUS OWNERS ASSOCIATION AND JOSEPH NOON ET AL., PROSECUTORS, v. BOARD OF PUBLIC UTILITY COMMISSIONERS OF THE STATE OF NEW JERSEY AND THE PUBLIC SERVICE CO-ORDINATED TRANSPORT, RESPONDENTS.
    NOTE—This opinion is a substitute for the one in Vol. 7, page 51, by the same title.
    Submitted October term, 1928
    Decided January 11, 1929.
    Before Justices Mintukkt, Black and Campbell.
    Eor the prosecutors, Nicholas 8. Schloeder.

    Eor the respondents, William N. 8peer and John W. Queen.

   Pee CuBiAvr.

This writ brings before us the judgment of the board of public utility commissioners approving the consents of the township of North Bergen and the borough of Cliffside Park to re-route, in part, a portion of the buses operated by the Public Service Co-ordinated Transport.

. Forty-three buses were operating under municipal consents and approval of the board of public utility commissioners, known as the Hillside Line, from Fourteenth street, Hoboken, to Lafayette and Anderson avenues, in Cliffside Park. Of these, thirty-three were owned and operated by the Public Service Co-ordinated Transport and the remaining ten by individual operators, called independents, who have associated themselves as the Hillside Bus Owners Association. The prosecutor Joseph Noon being one of such individual owners and operators.

Consents were obtained from the township of North Bergen and the borough of Cliffside Park by the Public Service Coordinated Transport to re-route a portion of its buses so that they should run over the original route from the Fourteenth street ferry, Hoboken, to Bergenline avenue and Hudson County Boulevard, and from such point should operate over Bull’s Ferry road to Palisade avenue and thence along same to its junction with the Hudson river trolley line in Fort Lee.

The actual change in route is in Bergen county. The old route extending through Anderson avenue northwardly and the new route through Palisade avenue, the two avenues paralleling each other; Palisade avenue being to the east of Anderson avenue and a trolley line known as the Palisade line operating over a right of way between the two avenues.

Prosecutors urge four grounds or reasons for setting aside the judgment or order.

The first is that the board of public utility commissioners was without authority or jurisdiction to make the order in question because the municipal consents did not particularize or specify the particular buses or specific consents theretofore granted which were the subjects of the re-routing and that this was necessary to be incorporated in such municipal consents and likewise in the order of judgment under review.

We do not reach this result but on the contrary conclude that the point is legally not well taken.

The second is that the judgment under review fails to fix just and reasonable standards, classification, regulations, practices and services to be furnished, imposed or observed and permits the Public Service Co-ordinated Transport to give undue and unreasonable preference and advantage to itself and subjects the prosecutors to prejudice and disadvantage.

The contention here seems to he that there is nothing to prevent the Public Service Co-ordináted Transport from rerouting, from time to time, such number of buses as .it may desire to take the large travel from Palisades Amusement Park and when that travel falls off or does not exist to cut down the number of buses it will operate on Palisade avenue and send them back into operation on Anderson avenue to the disadvantage and loss of the prosecutors.

As a matter of fact, from the proofs, this would seem unlikely. Anderson avenue is some considerable distance from the 'entrance to the amusement park and the bulk of the travel, north and south, to and from it is by means of the Palisade trolley line. The park is open only three months in each year.

The further answer against this contention is that it would be difficult at the outset for the board to determine how many buses it would be necessary to operate on Palisade avenue to meet the convenience and necessity of the traveling public. Time and operation alone can safely and properly determine that question.

It will be noted that the judgment, by its terms, is “revocable for violation of the board’s rules, regulations or conditions or for other good cause,” and without this reservation the sit- • uatipn anticipated, although not presently existing, if it does arise will present a proper ground for appeal to the board and a regulation in that direction.

The third ground is that there was before the board no approval of such re-routing by the borough of Eairview.

Of this, however, prosecutors cannot complain. They are not affected thereby. At least the record before us does not show in any manner they are injured.

The fourth and last ground is that there was not presented any consent by the borough of Cliffside Park to a reduction of service on the Palisade trolley line.

We are unable to see how this has any bearing upon the matter before us. In fact we find nothing in the record before us suggesting such reduction of service.

The judgment under review is affirmed and the writ of certiorari is dismissed, with costs.


author: Per Curiaai.

text:
    RAFFAELE GRIECO, PLAINTIFF, v. PUBLIC SERVICE RAILWAY COMPANY, DEFENDANT.
    Submitted May 11, 1928
    Decided January 16, 1929.
    Before Gumaiebe, Chief Justice, and Justices Parreb and Katzenbach.
    Eor the rule, Henry H. Fryling.

    Contra, John W. Lyness and Edward A. Marlcley.

   Per Curiaai.

This case is before this court on a defendant’s rule to show cause. The only question involved is whether the verdict of $14,000 rendered in favor of the plaintiff, Raffaele Grieco, against the Public Service Railway Company is excessive. The liability of the company was admitted. On March 25th, 1927, Grieco was waiting .for a trolley ear on Millburn avenue, in the borough of Millburn, to take him to Newark. One Ciricello came along and invited him to ride in his automobile. He was riding in the automobile up a hill. A trolley car of the defendant was coming down the hill. The trolley car left the track and struck the automobile. Grieco was bent so that his head almost touched his feet. He was able to get home. On the following day he had to call in a physician. The physician was a young practitioner who strapped up Grieco^s side where he complained of pain. The physician also thought there was a fracture of the ninth rib. Adhesive straps were placed over Grieco’s hack. X-ray photographs confirmed this diagnosis.

Grieco, however, did not get any better. He was sent to an eminent specialist of Plainfield. He advised that X-ray photographs be taken of Grieco’s back. These were taken. The pictures showed, according to the testimony of the specialist, a displacement and dislocation of the sixth dorsal vertebra. This injury is known as “a compression fracture of the sixth dorsal vertebra.”

The specialist says that Grieco could be operated upon at a cost of approximately $500, and by bone grafting, that is to say, taking a piece of bone out of his leg and putting it in the vertebra, could probably be relieved from the effect of his present condition. Pour out of five of these operations are successful.

There was .medical testimony offered by the defendant that Grieco suffered from a curvature of the spine and that the compression fracture mentioned was due to this curvature rather than to the accident. This curvature was due to the trade of Grieco, which was that of a shoemaker, which required sitting in one position a great part of the time. This left a disputed question for the jury under the medical testimony. We must accept the fact that the jury evidently considered that the injury to the sixth dorsal vertebra was due to the accident.

Grieco earned about $45 a week. He claimed at the trial that he could only work for a fraction of the week and that his loss was about $30 a week. This produced another disputed question for the determination of the jury as evidence was offered by the defendant that Grieco was seen in October and November, 1927, in his place of business actively working for longer periods of time than he testified to.

It is difficult to determine whether or not this verdict is excessive. It is not compulsory for the plaintiff to undergo such an operation as described for the purpose of reducing the defendant’s damages. It, of course, is not a certainty, if the operation were undertaken, that relief would be obtained from it. The plaintiff has lost in earnings some $1,600, if his statement is taken as true. He has been subject to considerable outlay (about $2,500) for medical expenses. If the injury continues without relief the plaintiff must suffer a great deal of pain in the future. His earning powers also, if the condition persists, will be greatly reduced. Under these circumstances we cannot say that the verdict is excessive. The rule to show cause will be discharged.


author: Pee Cubiam.

text:
    GEORGE W. DRENNAN, PLAINTIFF, v. CLARENCE J. HOUSMAN, DEFENDANT.
    Decided January 16, 1929.
    Before Gummebe, Chief Justice, and Justices Pabkeb and Katzenbach.
    Eor the rule, Joseph Coult.

      Contra, John A. Matthews.

   Pee Cubiam.

The plaintiff, Drennan, while driving a Eord truck in one of the streets of Long Branch, was injured in a collision with an automobile belonging to the defendant and which was being driven by the latter’s chauffeur. The defendant was riding' in the car at the time of the accident. The present suit was brought by the plaintiff to recover compensation for the injuries received by him, and the trial resulted in a verdict in his favor, the jury awarding him $25,000. The defendant then applied for and obtained the present rule to show cause.

The first ground upon which we are asked to make this rule absolute is that the court erred in charging the following request submitted by the plaintiff, viz., “The defendant, Clarence J. Housman, who it is admitted was riding in the car at the time of the accident, has not been called to testify to the various facts surrounding this accident, and, therefore, you may infer that whatever testimony he may have been able to give would have been unfavorable to him.” In view of the fact that, according to the uncontradicted testimony of the plaintiff given at the trial, the defendant had a conversation with the plaintiff, which took place shortly after the accident, at the hospital where the latter was undergoing treatment, in which he said: “Mr. Drennan, I am very sorry this happened, and, in my opinion, it was our fault” * * * and in view of the further fact that this testimony was corroborated by the plaintiff’s sister, who was present during the conversation, we consider that there was no error in the instruction complained of, which was in effect that the jury might (not must) infer from the failure of the defendant to testify in his own behalf that whatever testimony he would have given if he had taken the stand would have been injurious to his contention that the accident was not the result of the carelessness of his chauffeur.

The only other ground urged for making the rule absolute is that the verdict is clearly excessive. Our consideration of the testimony relating to the character and the extent of the injuries received by the plaintiff leads us to the conclusion that, notwithstanding their seriousness, this contention of the defendant is fully justified.

If the plaintiff will consent to reduce the verdict to $15,000, lie may enter judgment for that amount. Otherwise the rule .to show cause will be made absolute.


text:
    ERNEST KNABE, PLAINTIFF, v. INDEPENDENCE INDEMNITY COMPANY, DEFENDANT.
    Submitted May 11, 1928
    Decided January 15, 1929.
    Before Gummere, Chief Justice, and Justices Parker and Katzenbach.
    For the rule, C.oult & Satz.

      Contra, David T. Wilentz.

   Per Curiam.

This case is before us on a defendant’s rule to show cause. The only argument advanced in behalf of the defendant to set aside the verdict is that it is contrary to the weight of the evidence. On October 22d, 1925, the plaintiff, Ernest Knabe, was injured by an automobile truck. Knabe instituted an action against Andrew J. Gadek, alleged to be the owner of the truck which injured him. Knabe recovered a judgment of $7,500. Execution thereon was issued against Gadek and returned unsatisfied. Gadek was insured by the defendant, Independence Indemnity Company. This company refused to pay the judgment. The plaintiff then instituted a suit against it under the provisions of chapter 153 of the laws of 1924.

The defendant set up two defenses. The first was that the truck was not covered by the policy of insurance. The second was that if the truck was covered by the policy of insurance, Gadek had failed to notify the defendant of its liability within the time limited in the policy. The case was submitted to the jury which found a verdict for the plaintiff in the sum of $8,014.73.

As to the second defense, Andrew J. Gadek was out of the state when the accident occurred and did not know of it. The trial judge seemed under the impression that this defense was abandoned and paid little attention to it during the trial or in his charge. The defendant says now it was not abandoned. The statute (Pamph. L. 1924, p. 352) provides that failure to give any notice required to be given by such policy within the time specified therein shall not invalidate any claim made by the insured if it. shall be shown not to have been reasonably possible to give such notice within the prescribed time and that notice was given as soon as was reasonably possible. There was evidence that notice was given by Andrew J. Gadek as soon as was reasonably possible. Under this evidence, bearing in mind this provision of the law, we see no reason for setting aside the verdict on this ground.

As to the first defense it appeared that at the time of the accident the truck which figured in the accident had license plates upon it and a license card which belonged to Joseph Gadek, a brother of Andrew J. Gadek. The two brothers each owned a truck of the same make and style. The two trucks were kept in the same garage. Joseph had no insurance upon his truck. The driver at the time of the accident was John Gadek, a relative. He testified he was driving Andrew’s truck and that he never worked for Joseph. At the time of trial a truck admitted to-be‘Andrew’s truck was taken to the court house. Joseph swore this was the truck which figured in the accident. It was not viewed by the jury. Counsel for the defendant relies on two photographs of the truck which he claims show no damage. The evidence is that the truck was turned over on its right side in making a sudden turn to the left. The photographs, however, do show some damage. D 1 shows a splintered right edge of rear right door. D % shows missing right front hub cap, mudguard from front to rear battered on outer edge, running-board badly sprung upward in the middle, panel over rear wheel cracked, and top moulding damaged above the windows. These injuries would be likely to happen to a ear which had toppled over on its side when going at a moderate speed. It was, of course, a suspicious circumstance that the car of Andrew should have had upon it the license plates of Joseph’s ear. There was no evidence of damage to Joseph’s car. All of these facts were submitted to the jury and the jury passed upon the question and held that the truck involved in the accident was the truck of Andrew J. Gadek and the one covered by the policy of insurance. We feel we cannot say that the jury’s determination was not supported by the evidence.

This leads us to find that the verdict is not against the weight of the evidence. The rule to show cause is discharged.


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    EDWIN L. BRAXTON, PLAINTIFF, v. WEST JERSEY AND SEASHORE RAILROAD COMPANY, DEFENDANT.
    Argued May 3d, 1928
    Decided January 16, 1929.
    Before Gummebe, Chief Justice, and Justices Pabkek and Katzenbaoh.

      Eor the rule, Bourgeois & Coulomb.

      Contra, Albert S. Woodruf.

   Per Curiam.

This ease is before this court upon a defendant’s rule to show cause. The only point argued is whether or not the verdict rendered in favor of the plaintiff is excessive. The plaintiff was an extra conductor on the line of the West Jersey .and Seashore Railroad Company. He was injured while riding a freight car that was being drilled. The freight car was passing over a switching point. The switch became turned so that the front trucks of the car continued on the main track while the rear trucks were diverted to the switch. The result was a derailment of the car. The plaintiff’s left hand became jammed in the brake. A fracture of the forearm near the wrist resulted. There were some other minor injuries. The plaintiff was engaged at the time in interstate commerce. The action was instituted under the Federal Employers’ Liability act.

The plaintiff placed himself under the care of the defendant’s physicians. The break was a bad one. The ulna, one of the two bones in the wrist, was never perfectly joined. The efficiency of the arm has been lessened. The plaintiff cannot do the work which he did. The arm has from fifty to seventy-five per cent, of its normal use. It is useful only in dressing, eating, and in light work. It is conceded to be a permanent disability.

The verdict was $25,000. This is a large verdict even though the injury is a serious one. Within the past few years there have been verdicts for the loss or impairment of an arm of $7,500 or less. The plaintiff in the present case, however, had perhaps greater possibilities' as. to the future than in the oases referred to. The highest wages the plaintiff had received at the time of the accident would yield approximately $2,700 per a.nmvm. It is difficult to say in such a case what amount of compensation is just. If an error is made it perhaps should be made in favor of the plaintiff. We think it can be safely said, however, that this verdict is $7,000 higher than is justified by precedents. A verdict of $18,000 would, it seems to us, be reasonable and fair. If the plaintiff will, within ten days from the filing of this opinion, enter his written consent to the reduction of the verdict to $18,000 the rule will be discharged. If the said reduction is not consented to within said period, the rule will be made absolute.


text:
    WALTER BALLIET, PLAINTIFF-RESPONDENT, v. WHITING WOOL COMPANY, DEFENDANT-APPELLANT.
    Submitted May 11, 1928
    Decided January 16, 1929.
    Before Gummebe, Chief Justice, and Justices Paeicee and Katzenbach.
    Eor the appellant, Francis G. Homan and Howard L. Miller.

    Eor the respondent, Norman W. Harleer.

   Per Curiam.

This is an appeal from a judgment of the Camden County Circuit, Court. The action was instituted by the plaintiff to recover on a breach of contract of employment made between him and the defendant. The jury rendered a verdict in favor of the plaintiff for $5,396.16. The plaintiff had a written contract for the year 1926 with the defendant by which he was to receive $7,500 for his services as manager. He was discharged on May 10th, 1926. The question involved in the action was whether the discharge was lawful or unlawful. There was a difference over a Ford car which was missing from the defendant’s place of business. The plaintiff was away on a business trip. He received a wire from the president of the company reading: “Where is the Ford?” The plaintiff replied: “Ford in jail. Why worry about flivver? Wool is to be sold. They are being made every minute.” Plaintiff returned home soon after sending this telegram and was discharged.

There are eleven reasons or grounds of appeal. These reasons do no't specify any erroneous rulings of the trial court. This court is asked upon an appeal to set aside the judgment because it is against the weight of the evidence, &c. There was no motion to nonsuit, no motion for the direction of a verdict, no exception to the charge of the court, and no execution to any ruling of the trial judge alleged to be adverse to the appellant. The reasons are in the most general form. They cannot be considered. It has been decided in many cases that the Practice act of 1912 made no change in the fundamental rules for review of cases at law. There must be some ruling of the court below that was adverse to the appellant and an exception taken to this ruling before this court or the Court of Errors and Appeals will consider the case on appeal. Webster v. Freeholders of Hudson, 86 N. J. L. 256. For this reason this court and the Court of Errors and Appeals have refused to pass on an appeal upon such questions as the weight of evidence, whether or not the verdict is excessive, and similar questions. As there is in the present case no ruling alleged to be adverse to the appellant there is no question presented to this court for decision.

The judgment is affirmed.


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    THOMAS I. ARNOLD v. McCULLOUGH GENTLE TRUCKING COMPANY, INCORPORATED, ET AL.
    Decided January 16, 1929.
    Before Gummere, Chiee Justice, and Justices Parker and Katzeebach.
    For the rule, Rosenkrans £ Rosenkrans.

    Contra, William E. Holmwood and Raymond E. Taylor.

   Per Curiam.

The plaintiff instituted the present suit against the McCullough Gentle Trucking Company and one Schadell to recover compensation for damage done to his automobile in colliding, with a car of Schadell’s, the collision resulting, as he claimed, from the joint negligence of the driver of the trucking company, and the driver of the Schadell car. When the case was moved for trial the plaintiff consented to enter a judgment of nonsuit as to Schadell, and the trial proceeded with the trucking company as the sole defendant. The jury returned a verdict of no cause of action, and the plaintiff thereupon applied for and obtained the present rule. The only contention made before us is that the verdict of the jury was contrary to the weight of the evidence.

The accident occurred on a stormy night, at a little after seven o’clock, in March, 1926, upon the Paterson Plank road, not far from Lyndhurst. The plaintiff’s automobile was being driven by his chauffeur from New York to Paterson over this highway. There are trolley tracks on each side of this road, the driveway for motor and other vehicles being between these tracks. While plaintiff’s chauffeur was traveling along the highway at a rate of thirty to thirty-five miles per hour, he suddenly observed some thirty-five or forty feet in front of him the truck of the defendant company, which was at a standstill and close to the trolley tracks which were on the right of the plaintiff’s driver. The truck had no lights burning. The headlights upon plaintiff’s car were turned on. When the plaintiff’s driver observed the truck he swung to the left in an attempt to go around it, but before he had cleared the truck he collided with the automobile of Schadell, which was approaching from the opposite direction, and which he had failed to observe, although the headlights thereof were both burning. The jury’s finding in favor of the defendant .upon a consideration of the facts recited presumably was based upon the ground that the accident occurred partly at least by xeason of the negligence of the plaintiff’s driver in traveling at a rate of speed which was excessive under the conditions d;hen existing; on his failure in not having sooner discovered -the standing truck, although his own headlights were burning, and also in not having observed the approach of the Schadell ■car before swinging out into its path, notwithstanding that 'the headlights on the latter ear were also burning. We cannot say that a finding of contributory negligence on the part of plaintiff’s driver based upon these facts was against the clear weight of the evidence. On the contrary, in our opinion, this finding was clearly justified.

The rule.to show cause will be discharged.


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    NIELS NIELSON ALLING, PLAINTIFF, v. LeROY WALTON, DEFENDANT.
    Argued May 2d, 1928
    Decided January 16, 1929.
    Before Gummere, Chief Justice, and Justices Parker and Katzenbacii.
    Eor the rule, Samuel Craig Cowart.

      Contra, John F. Ryan.

   Per Curiam.

This case is before this court upon a plaintiff’s rule to show cause. On July 26th, 1926, the plaintiff, a man of sixty-six years of age, was riding his bicycle westwardly over an unimproved road known as Watrous lane, in Middlesex county, towards Pord’s Corners where he resided. The defendant was driving his automobile in a southerly direction on an improved main highway, known as Cleveland avenue, to the shore. Cleveland avenue crosses Watrous lane at right angles. The plaintiff knew the locality and knew Cleveland avenue to be the main highway. His testimony was that he first saw the defendant’s car when he was in the middle of the forty feet wide concrete surface of Cleveland avenue. The car was ascending a grade and was approximately one hundred and ninety-two feet distant. The plaintiff had twenty feet to go to cross Cleveland avenue and was propelling his bicycle at the speed of ten miles an hour. His wheel struck the left front mudguard of the defendant’s car. This version would make the speed of the defendant’s car approximately ninety miles an hour. The speed of the ear testified to by the defendant and a Dr. Gardner, who was following in an automobile, was twenty-five miles an hour. The defendant’s car was about at the top of a long ascending grade where it would not be likely to attain such a speed as is inferable from the plaintiff’s testitimony. The defendant’s car must have been nearer to the plaintiff when he first saw it.

The defendant’s version was that he thought the plaintiff was going to the rear of his car, when the plaintiff turned and triéd to pass in front of it. The defendant steered to the right but the plaintiff’s wheel struck the left front mudguard as stated. The defendant testified he stopped his car within ten or fifteen feet and the plaintiff was at the rear end of the car when stopped. The plaintiff’s contention is that the car was not stopped within this distance.

The case was submitted to the jury which found for the defendant. The plaintiff assigns ten grounds for a new trial. The first is that the verdict is against the weight of the evidence. We have reviewed the evidenc and do not consider that the verdict rendered was contrary to the weight of the evidence. The second ground is the same with the recital of additional testimony on the extent of plaintiff’s injuries. The answer to ground one covers the second ground. The third ground is that the verdict was contrary to the charge. We have been unable to see in what respect it is. The fourth ground is that the charge in sevral particulars is erroneous. The particular portions are not ■ specified. This is required under rule 125 of the rules of the Supreme Court. There is no way for the opposing party or this court to determine the portions of the charge' which the plaintiff alleges to be erroneous.

The fifth ground is the refusal to charge as requested. "The requests” are one continuous request of four printed pages. It is not a complete charge. It was properly refused. It contains misstatements of the testimony, as for example, in calling Watrous road a prominent cross road when it was a lane, poorly defined. It contained an error in law as it stated the maximum lawful speed was fifteen miles per hour. ' The sixth ground depends on the misstatement as to speed and is in this respect faulty. The seventh ground is a variation of the first ground on the verdict being against the weight of the evidence which we have considered.

The eighth ground is that there was no evidence of contributory negligence which justified the verdict rendered. It is argumentative in character. We deem the evidence ample to have justified the verdict on the ground of contributory negligence. We considered this question in determining that the verdict was not contrary to the weight of the evidence. The ninth ground is that the jury disregarded the evidence and instructions of the court. This is but another way of stating the same proposition which we have already discussed and passed upon. The tenth ground is an argument that the defendant was traveling at a reckless speed. This is but an element of the first ground which we have heretofore considered.

Our examination of the ease has brought us to the conclusion that the rule to show cause should ho discharged. It is accordingly discharged.


text:
    MARIE MARTIN, PLAINTIFF, v. MAX COHEN ET AL., PARTNERS, ETC., DEFENDANTS.
    Decided January 16, 1929.

      Before Gummere, Chief Justice, and Justices Parker and K'atzenbach.
    Eor the rule, Kellogg & Chance.

    Contra, Norman R. Wynne.

   Per Curiam.

The plaintiff, a woman thirty-four years old, was injured in December, 1926, while riding in an auto bus, which came into collision with the defendants’ truck, on Broadway, in the city of Long Branch. The present suit was brought to recover compensation for the injuries sustained by her as the result of this collision. The trial resulted in a verdict in her favor, the jury awarding her $25,000. On the application of the defendants, the trial court allowed the present rule to show cause, and we are now asked to make that rule absolute upon the ground that the verdict is excessive.

The plaintiff’s testimony was that at the time of the accident she was employed as a housemaid, earning about $18 a week. She had previously been engaged also in keeping a boarding house, but this latter occupation had been given up by her some month or more before the date of the collision. There is no doubt that her injuries were serious, and to some extent permanent. It seems to us that, notwithstanding this fact, in view of the character of the work in which the plaintiff was engaged and the amount of her earnings from it, the award of the jury is plainly excessive. If she will consent to a reduction of the verdict to $20,000, she may enter judgment for that amount. Otherwise the rule to show cause will be made absolute.


text:
    EMILY MOORE, PLAINTIFF, v. ATLANTIC AND SUBURBAN RAILWAY COMPANY, DEFENDANT.
    Decided January 16, 1929.
    Before Gummere, Chibe Justice, and Justices Parker and Katzenbach.
    Eor the rule, Bourgeois & Coulomb.

    Contra, Oscar LeWine and William I. Garrison.

   Per Curiam.

The plaintiff instituted this action to recover compensation for injuries 'which she received, as she alleged, while attempting to board a trolley car of the defendant company in Pleasantville, and which, as she claimed, was caused by the negligence of the operator of the car. Her story told on the witness-stand at the trial of the cause was that the trolley car stopped at a street intersection to discharge and take on passengers; that she, with a Mrs. Eck, started to get on the car, Mrs. Eck going first and the plaintiff following her ; that Mrs. Eck got on safely, but as the plaintiff got one foot on the step the car started up, and she was thrown to the ground; that as the result thereof her leg was severely bruised; that she also received a bruise across the lower portion of her abdomen, and also that she suffered a severe nervous shock. Her story as to the happening of the accident was corroborated by the testimony of Mrs. Eck. The jury awarded her a verdict of $500; and, a rule to show cause having been allowed the defendant, it is now contended before us that the finding of responsibility on its part was against the weight of the evidence, the argument being that the proofs greatly preponderate in favor of the conclusion that no such casualty as alleged in the complaint ever occurred. A reading of the testimony submitted on the part of the defendant, as well as that submitted by the plaintiff, leads us to the conclusion that the jury was entirely justified in finding that the alleged accident to Mrs. Moore which is the subject of the present litigation actually occurred, and that it was caused by the carelessness of the operator in starting the car while she was in the act of boarding it.

The rule to show cause will be discharged.


author: Pee Curiam.

text:
    ELIZABETH F. GOODWIN, PLAINTIFF, v. CRESCENZO DENTATO, DEFENDANT.
    Decided January 16, 1929.
    Before Justices Minturn, Black and Campbell.
    Por the plaintiff, Keating & Keating.

    For the defendant, Rogers & Johnson.

   Pee Curiam.

The rule to show cause allowed in this case brings up for the consideration of the court the question as to the adequacy of the verdict rendered in favor of the plaintiff, at the Middle-sex Circuit, for personal injuries sustained by her while riding in an automobile owned and driven by Paul J. Landwehr. Mr. Landwehr was driving his car in a southerly direction along the Lincoln Highway, in New Brunswick, New Jersey, and, as he alleged, made due observations in the rear view mirror, and having ascertained that no other vehicles were in his immediate vicinity, commenced to make a left turn into a private driveway which ran from the Lincoln Highway, at a point approximately forty feet south of the intersection of Lufbury avenue and the Lincoln Highway. "While his car was at an angle of about ten degrees, between the right hand side and the centre of the highway, Mr. Landwehr saw the reflection on the roadway of the headlights of an automobile overtaking him from the rear, and brought his car to a complete stop. Shortly thereafter the automobile owned by the defendant, traveling in the same direction as the Landwehr car, driven by the defendant’s son-in-law, Joseph Constantino, ran into the left rear of the Landwehr car, damaging the same and causing the personal injuries for which the plaintiff brought this suit.

The ownership of the car was not denied, or the fact that it was being driven by the defendant’s son-in-law with the defendant’s consent.

At the trial the defendant did not appear personally or by attornejr, and the plaintiff’s case alone was presented to the jury, who brought in a verdict in favor of the plaintiff and against the defendant for $1,500.

Thereafter other counsel was substituted for the defendant, and the plaintiff consenting thereto, a new trial was had on May 9th, 1928, at which both parties were represented by counsel. The result of this trial was that the plaintiff obtained a verdict from the jury for $300; and this rule was obtained upon the theory that the verdict of $300 was inadequate and should be set aside for that reason.

The medical testimony showed that the plaintiff suffered nervous shock, a fractured rib, and bruises in the neighborhood of the left side of the forehead and around the eye, as well as on her arm near the elbow, and that a slight sear remained upon her forehead.

The plaintiff was sixty-four years old, and remained home from work for a month, during which period she continued to receive her wages.

The physician’s bill was estimated at about $100.

The plaintiff at the time was riding as a guest of Mr. Landwehr in the auto, in which she was seated, and had no control of the car, which was under his direction and control.

On the trial the defendant offered no medical witnesses, while the plaintiff offered one physician, a family doctor of twenty years acquaintance and service, who considered the plaintiff a friend. He testified as to her nervous condition and the permanent results of the injury the plaintiff sustained, which in our judgment would indicate that the verdict of the jury for $300 under the circumstances was entirely inadequate and presents the basis for a trial de novo.

The reply brief filed deals to a great extent with the modus operandi employed, or alleged to have been employd, by the plaintiff in obtaining the first judgment. We are not, of course, concerned with that feature of the case at this time, but are concerned only with the adequacy of the damages awarded by the jury upon the last trial, which as we have observed, we considered inadequate.

The result, therefore, will be that a new trial will be ordered, and confined entirely to the question of damages sustained by the plaintiff. To that extent the rule will be made absolute.


author: Peb Cubiam.

text:
    THE STATE OF NEW JERSEY, DEFENDANT IN ERROR, v. MATTHEW A. DALY, PLAINTIFF IN ERROR.
    Argued May 2d, 1928
    Decided January 16, 1929.

      Before Gummebe, Chief Justice, and Justices Pabkeb and Katzenbach.
    Eor the plaintiff in error, Wilbur A. Mott and George T. Tickers.

    Eor the defendant in error, Johnson T. Alter and George K. Large.

   Peb Cubiam.

This case comes to this court through the medium of a writ of error directed to the Hunterdon County Court of Quarter Sessions. The entire record of the proceedings has been certified so the case is here both upon assignments of error and specifications of causes for reversal. The plaintiff in error is Matthew A. Daly, a member of the state police. He was indicted for committing an assault and battery upon Timothy Meaney. Timothy Meaney and his brother, James Meaney, were farmers residing in Hunterdon County. A complaint was made against them with reference to insufficient care of cattle. A warrant upon the complaint was issued. In attempting to execute the warrant, what might be termed a battle between the state troopers and the Meanevs occurred during the night of December 21st, 1926. Daly was wounded. It is claimed that the wound was inflicted with a shotgun by Timothy Meaney. When in the morning Timothy Meaney had been arrested, the indictment charged that Daly struck Meaney with his fist. Daly was convicted.

The first point made by the plaintiff in error is that there was no evidence that Daly struck Timothy Meaney and therefore the verdict was against the weight of the evidence. The record shows that Dr. Lane testified to a trooper striking Meaney with his fist. He did not identify Daly. One Norman Dalrymple testified that he saw a trooper hit Meaney. This trooper had a white patch on his chin. In response to the question as to whether he could identify the trooper or not, he replied that “the man with the light suit on looks like the fellow.” This man was Daly. William Terriberry testified to the effect that Daly had a white patch or bandage on his chin. The face of Timothy Meaney was swollen and red. His nose was bleeding. This testimony was sufficient to permit the jury to pass upon the question as to whether or not the defendant was the man who struck Meaney. Daly did not take the stand. No evidence was offered in his behalf. The verdict under this state of the testimony is not, we think, contrary to the weight of the evidence.

The next point advanced by the plaintiff in error deals with the testimony of Sergeant Cunningham, a witness offered by the state, who was a member of the state police .force. The state expected Cunningham to testify that he saw Daly strike Meaney. He testified that he did not see Daly hit Meaney. Cunningham was then asked whether or not he testified before Colonel Schwartzkopf, Major Kimberling and Captain Lamb with reference to this matter on January 27th, 1927. This question was admitted. We think properly, but it is unnecessary to consider the point, because the witness said that he had not testified at any hearing or trial on the subject. Cunningham was then asked whether he had made a statement, objection was made to this. His answer was that he had not made a statement or given any testimony on the subject. When the question was put directly to the witness it was objected to and the objection was sustained. The defendant then moved to withdraw a juror. This motion was denied. The ruling dealt with a matter resting within the direction of the court. There was nothing which transpired which was prejudicial to the defendant. This disposes of points three, four and five.

Point six deals with an objection made to a witness, Kimberling, being permitted to testify that a certain paper marked 8 jg for identification, incompetent as evidence, was delivered by the witness to the prosecutor of the pleas. We see nothing harmful to the plaintiff in error in the allowance of this question.

Point seven brings up the allowance by the court of the following question put to Timothy Meaney: “You did not see him hit you ?” Answer: “I did not see him hit me, but I saw him shortly after.” As the state was obliged to show that Daly was at the place when Meaney was hit, we see nothing erroneous in permitting this question to be asked the witness.

The eighth point deals with that portion of the charge of the court which deals with the subject of the defendant not taking the stand in his behalf. What the court said was taken in part from the case of State v. Parker, 61 N. J. L. 308; affirmed, 62 Id. 801. No particular exception was taken to this part of the charge at the time. It is now brought up under a general exception taken to the charge. What the court said on this subject was:

“Considerable has been said both by the counsel for the defendant and counsel for the state, the prosecutor, as to the defendant not taking the witness stand. The rule in New Jersey is as follows: * * * upon the New Jersey act of 1871, the Evidence act, which permitted an indicted person to become a witiiess in his own behalf by offering himself as such, did not provide that his failure to offer himself should raise any presumption against him when there shall be allusion to such failure by counsel or court. It was held that when facts had been testified to by witnesses for the prosecution, which concerned the actions of the defendant, and, if not true, might be disproved by him, his failure to offer himself as a witness might be considered and commented upon.”

While this is not as complete a statement as that contained in State v. Parker, supra, we consider it a correct statement of the law as far as it goes. It was neither harmful or prejudicial to the plaintiff in error. If a fuller statement of the law had been desired by the plaintiff in error it should have been embodied in a request to charge and submitted to the trial judge.

The judgment on the conviction is affirmed.


text:
    ORMONDE W. McCLAVE, PLAINTIFF, v. JOSEPH BARNABA ET AL., DEFENDANTS.
    Submitted May 11, 1928
    Decided January 16, 1929.
    Before Gummere, Chief Justice, and Justices Parker and Katzenbach.
    Eor the rule, Archie Ellcins and Alexander Simpson..
    Contra, Charles W. Weehs.

   Per Curiam.

This case is before this court upon a defendants’ rule to show cause. The plaintiff obtained a judgment for $2,100 in a suit instituted by him against Joseph Barnaba and Victor Barnaba to recover damages arising out of an automobile accident. The accident occurred on Palisades avenue, in Cliff-side, New Jersey, at about eleven-thirty p. m. <5n August 24th, 1926. Palisades avenue is a street sixty-six feet in width. The center of the street is paved with asphalt. The asphalt is forty feet in width. There is a dirt shoulder on each side of the asphalt thirteen feet in width. Palisades avenue runs substantially north and south. The plaintiff’s car, a Marmon, was proceeding northwardly on the easterly or right hand side of the road. The car of the defendant, Joseph Barnaba, driven by Victor Barnaba, his son, was a Buick. This ear was being driven in a southerly direction on the avenue. The contention of the plaintiff was that the Barnaba car approached him on the easterly or wrong side of the road. Thinking that the Barnaba car was going to a garage located on the east side of Palisades avenue, the plaintiff turned his car to the left. As he did so Barnaba pulled his car to his right and the plaintiff’s car struck the Barnaba car about in the middle of the left hand side. Barnaba contended that he was proceeding fifteen or twenty miles an hour on the westerly side of the road with the right hand wheels running on the dirt shoulder and that the plaintiff pulled his car over to the westerly side of the road and struck his car.

The versions of the two parties are opposite. If the defendants’ version was true, the plaintiff was in fault and guilty of contributory negligence. If the plaintiff’s version of Barnaba’s driving his car on the wrong side of the road is true, then Barnaba was negligent. It seems to us that in view of this contradictory testimony the case was properly left to the jury. The defendant contends that there was no evidence showing any negligence on his part which was the proximate cause of the accident. This contention entirely overlooks the testimony of the plaintiff and his principal witness, Joseph L. White, who was apparently a disinterested witness, and whose testimony, from the way it was given, undoubtedly had considerable weight with the jury. To support this contention that no negligence was shown would require the elimination of the plaintiff’s testimony in its entirety. The contention of the defendant that the plaintiff was guilty of contributory negligence as a matter of law would likewise require the elimination of the plaintiff’s testimony on this subject. It was a case where the jury was entitled to pass upon both the question of negligence and contributory negligence. The court did not err in refusing either to nonsuit or direct a verdict for the defendant.

This leaves for consideration the question whether the verdict was against the weight of the evidence. The defendant’s car was filled with the defendant’s family. Yictor- Barnaba was the driver. An employe by the name of Frank Margarite was sitting on the front seat with a small boy on his lap. Nicholas Barnaba was sitting on the floor in the back. Susie Eobertson says that she was sitting “on the floor on a chair in the back.” Joseph Barnaba, the owner, was sitting in the back of the car. Eichard J. Eobertson was sitting in the back of the car. These, with a man by the name of Jerome J. Bruin, were the witnesses for the defendants. The witnesses offered by the plaintiff were himself and Joseph L. White, whose car was parked and about ready to depart when the accident occurred. The number of witnesses does not control. The jury have the right to accept as a basis for their verdict the testimony of those witnesses whose testimony appears to them to be the most credible, although less in number. Our review of the testimony has led us to the conclusion that the verdict should not be disturbed.

The rule to show cause is discharged.


author: Pek Cubiaai.

text:
    EDITH GUSTIN AND ALBERT GUSTIN, PLAINTIFFS, v. JOHN CALANDRIELLO ET AL., DEFENDANTS.
    Submitted May 11, 1928
    Decided January 16, 1929.
    Before Gummere, Chief Justice, and Justices Parker and Katzenbach.
    Eor the rule, Applegate, Stevens, Foster, Leonard & Reussille.

      Contra, Quinn, Parsons & Doremus.

   Pek Cubiaai.

This case is before this court upon a defendants’ rule to show cause. In the action, a verdict was rendered in behalf of Albert Gustin, the plaintiff, for medical expenses paid by him for injuries received by his wife as the result of being struck by an automobile owned by John Calandriello and operated at the time of the accident by his son, Thomas. The question presented to us is whether the trial court erred in submitting the liability of John Calandriello to the jury. The evidence of John Calandriello, Thomas, and another son, Michael, was to the effect that on the evening in question (January 20th, 1927), Thomas had asked his father for the use of the car. The father refused to give his permission. Thomas then took out the car without the consent of his father. If this were all the testimony we would be inclined to think that the presumption of liability had been overcome. Thomas, however, had a license to drive. This license had been paid for by his father. Thomas had had the license for three or four years. Thomas had no car of his own. He had frequently obtained the consent of his father to the use of his father’s car. He drove his father and mother about. While this was denied by John, yet there was evidence to this effect. Thomas had a key for the car. Mrs. John Calandriello (the mother) also had a key. She would give permission to her son, Thomas, to use the car. The testimony of the members of the family upon this phase of the ease was conflicting. In our opinion the trial court ruled properly in submitting the case to the jury. In the case of Tiscler v. Steinholtz, 99 N. J. L. 149, it was held that if the evidence was contradictory, or reasonably subject to contradictory interpretations, the question of liability is for the jury. The cases of DeMott v. Knowlton, 100 Id. 296, and Venghis v. Nathanson, 101 Id. 110, are to the same effect.

The rule to show cause is discharged.


text:
    ANNA M. LAWSON ET UX., PLAINTIFFS, v. WEST JERSEY AND SEASHORE RAILROAD COMPANY, DEFENDANT.
    Decided January 16, 1929.
    Before Gummere, Chief Justice, and Justices Paekee and. Katzenbaoh.
    Eor the rule, Bourgeois & Coulomb.

    Contra, William C. French.

   Pee Curiam.

This suit was instituted by Mrs. Lawson and her husband against the defendant railroad company, the former seeking to recover compensation for injuries she received while alight-ing from a train at the South Camden station, in the city of Camden, and her husband seeking compensation for the expenses to which he was put by reason of his wife’s injuries and for the loss of her services.. The trial resulted in a verdict in favor of the plaintiffs, the jury awarding Mrs. Lawson the sum of $1,500, and her husband the sum of $300. The contention on the part of the defendant made upon the argument of the present rule is that the finding of the jury was contrary to the weight of the evidence on the question of liability.

The story of Mrs. Lawson was that as she was in the act of stepping off the train, which had stopped for the purpose of discharging passengers, it suddenly started up, throwing her to the ground, thus inflicting upon her the injuries for which she sued. Her son and her grandson were passengers on the train, and the son corroborated her story as to the starting of the train while she was in the act of alighting. On the other hand, a large number of witnesses were called, several of them absolutely disinterested, who testified that the plaintiff had not got out of the body of the car before the signal was given for the train to start, and that after it had started she came out upon the platform and attempted to alight, her son and grandson having already left the car, and that in attempting to do this she fell and received the injuries of which she now complains.

A careful reading of, the proofs sent up with the rule satisfies us that the contention of the defendant is entirely justified; that the verdict of the jury was the result of sympathy felt for the plaintiff, and was in plain disregard of the preponderance of the proof submitted to it for its consideration.

The rule to show cause will be made absolute.


author: Pee Cukiam.

text:
    ALMA MICHELSEN, ADMINISTRATRIX AD PROSEQUENDUM, PLAINTIFF, v. ERIE RAILROAD COMPANY, DEFENDANT.
    Decided January 16, 1929.
    Before Gum. mere, Chief Justice, and Justices Parker and Katzenbach.
    For the rule, Edward A. Markley and Charles W. Broadhurst.

      Contra, Alexander Simpson.

   Pee Cukiam.

The present suit is brought under the statute entitled “An act to provide for the recovery of damages in cases where the death of a person is caused by wrongful act, neglect or default.” (Comp. Stat., p. 1907.)

The plaintiff’s husband, Axel Michelson, while engaged in the service of the Frederick Snare Corporation, was directed by his employer to assist in unloading two carloads of poles, which belonged to it and which had been transported over the defendant’s railroad. While engaged in this work, the poles, by reason of the negligence of the defendant company, fell upon him, so injuring him that he died shortly afterward. The trial of the case resulted in a verdict in favor of the plaintiff, the award being $46,800. The present rule was thereupon allowed, and we are now asked to make it absolute upon the sole ground that the verdict is excessive.

The decedent at the time of his death was forty j^ears old, and was earning $57.50 per week; 'that is, approximately $3,000 a year. The interest on the amount awarded at six per cent, would be over $2,800 annually; that is, as much as the earnings of the decedent had he continued in good health permanently, and it be assumed that the expenses incurred for his own maintenance were not less than $200. In other words, the wife and the next of kin, consisting of four children, will have as much annually from the investment of this fund as would have come to them if the husband and father had continued to live, and will, in addition have the total principal of the award. In view of this fact, we consider that the contention of the defendant is entirely justified; in other words, that the verdict is clearly excessive, for the statute referred to limits the amount of the recovery to the pecuniary loss sustained by the widow and next of kin of the decedent.

If the plaintiff will consent to accept a reduction of the award to $25,000, she may enter judgment for that amount. Otherwise the rule to show cause will be made absolute.


text:
    THE TOWN OF SECAUCUS v. BOARD OF PUBLIC UTILITY COMMISSIONERS ET AL.
    Submitted October term, 1928
    Decided January 3, 1929.
    Before Justices Mintubn, Black and Campbell.
    Eor the applicant, William C. Asper.

      Contra, William II. Speer and John 0. Bigelow.

   Peb Cubiam.

The application for the writ of certiorari is denied and the rule to show cause is discharged.


text:
    HUGO VAN DOVER ESTATES, INCORPORATED, RELATOR, v. JERSEY CITY ET AL., RESPONDENTS.
    Submitted October term, 1928
    Decided January 3, 1929.
    Before Justices Mintuen, Black and Campbell.
    Eor the relator, Aaron Gordon.

    Eor the respondents, Frank J. Reardon.

   Peb Cubiam.

The application for the writ of mandamus is denied and the rule to show cause is discharged.


author: Pee Cueiam.

text:
    JOHN SCHLENKER, Jr., ET AL., v. ABRAM L. SUSSMAN.
    Submitted October term, 1928
    Decided January 3, 1929.
    Before Justices Mintuen, Black and Campbell.
    Por the applicant, Samuel D. Williams.

      Contra, Francis A. Cordon.

   Pee Cueiam.

The application for the rule is denied, with costs.


text:
    STATE OF NEW JERSEY v. JOHN J. GALL ET AL.
    Submitted October term, 1928
    Decided January 3, 1929.
    Before Justices Mintuen, Black and Campbell.
    Por the state, Abe J. David and Walter C. Tenney.

    Por the defendant, Francis A. Cordon.

   Pee Cueiam.

The application for the writ of certiorari is denied.


text:
    BERNARD ROSENBERG ET AL., PLAINTIFFS, v. LOUIS KOCIENCKI ET AL., DEFENDANTS.
    Decided January 16, 1929.
    Before Gummere, Chief Justice, and Justices Parker and Katzenbach.
    For the rule, Thomas F. Meaney.

      Gon Ira, George Roih stein.

   Per Curiam.

Bernard Rosenberg, a boy about sixteen years old, while riding on a bicycle on Coles street, in Jersey City, was run down and injured by an automobile belonging to the defendants. The present suit was brought to recover compensation for the injuries received by the boy and for the expenses and losses as the result of the boj-’s injuries incurred by his mother, with whom he was living, his father being dead. The trial resulted in an award to the boy of $2,150 and to the mother of $350, and the only contention made before us on the argument' under the present rule is that the amount awarded to the boy is excessive.

Our examination of the testimony in the cause leads us to the conclusion that, although the award is extremely liberal in view of the character of the boy’s injuries, yet it is not so clearly excessive as to justify us in setting it aside.

The rule to show cause will therefore be discharged.


text:
    WILLIAM PEARCE, PLAINTIFF, v. JOSEPH F. DOWNEY, DEFENDANT.
    Decided January 16, 1929.
    Before Gummere, Chief Justice, and Justices Parker and Katzenbach.
    Eor the rule, Samuel D. Williams. ■

      Contra, Francis A. Gordon.

   Per Curiam.

The plaintiff, while walking on the sidewalk of Adams street, in the city of Elizabeth, on the afternoon of October 16th, 1926, was struck down and injured by a car owned and driven by the defendant Downey immediately after it had collided with a car owned by the defendant Hurley. The plaintiff brought suit against both defendants, claiming that his injuries were the direct result of the joint negligence of the two. The jury exonerated Hurley, and awarded the plaintiff $25,000 as against Downey. The latter thereupon applied for and was allowed the present rule to show cause. The only ground upon which we are asked to make this rule absolute is that the verdict is excessive.

There is no doubt that the plaintiff was severely hurt. At the time of the accident he was a foreman cabinet-maker of the Central Railroad Company of New Jersey, receiving wages of $214 a month. He was not able to resume his work until sometime in July, 1927, and lost the wages which he would have earned during that period, amounting to some $1,750. He returned to his work at the latter date at the same salary; and this salary was afterwards increased. In addition to his loss of wages, he was compelled to pay out for doctors’ bills and other expenses made necessary by reason of his injuries some $900, making a total financial loss of about $2,680. Deducting these losses and expenditures from the amount of the jury’s verdict, it is apparent that he was awarded between $22,000 and $23,000 as compensation for his pain and suffering and permanently impaired physical condition. There is no suggestion that this impaired condition at all interferes with his present earning capacity or will interfere with it in the future. In view of these facts, we are satisfied that, notwithstanding the severe character of the plaintiff’s injuries, the contention of the defendant that the verdict is clearly excessive is entirely justified.

If the plaintiff will consent to a reduction of the amount of the award of the jury to $17,500, he may enter judgment for that amount. Otherwise, the rule to show cause will be made absolute.


text:
    HANNAH O’SHEA, PLAINTIFF, v. PUBLIC SERVICE TRANSPORTATION COMPANY ET AL., DEFENDANTS.
    Decided January 16, 1929.
    Before G-ummeke, Chief Justice, and Justices Pabicer and Katzenbach.

      Eor the rule, Frank G. Turner.

    Contra, Maley & Matey.

   Per Curiam.

The plaintiff brought the present suit to recover compensation for personal injuries received by her while a passenger-in one of the buses of the Public Service Transportation Company, resulting from a collision between the bus in which she-was riding and a truck belonging to the Keystone Dairy Company. The suit was instituted against the respective owners of the two vehicles, and at the conclusion of the trial the jury returned a verdict of no cause of action as to the Public Service Transportation Company, and awarded the plaintiff $3,000 as-against the Keystone Dairy Company. The latter then applied for and obtained the present rule, and the only ground upon which we are asked to make the rule absolute is that the-verdict is excessive.

Our examination of the testimony sent up with the rule-leads us to the conclusion ’that, if the jury accepted as true-the testimony of the plaintiff and of her attending physician as to the character of the injuries which she received and their effect upon her physical condition, the amount awarded to the-plaintiff cannot be clearly excessive. The jury was .justified in accepting this testimony as accurately showing the character and extent of the injuries received by the plaintiff, and we conclude therefore, that the rule to show cause should be discharged.


text:
    PEARL LEAVITT, RESPONDENT, v. MOSES LEAVITT, APPELLANT.
    Decided January 16, 1929.

      Before Gummere, Chief Justice, and Justices Parker and Katzejsfbach.
    Eor the appellant, Joseph Kraemer.

    For the respondent, Wolber & Gilhooly.

   Per Curiam.

The present suit was instituted by the plaintiff to recover damages from the defendant for his wrongful act in alienating the affections of her husband and persuading him to desert her.

Plaintiff’s husband is the son of the defendant. The marriage took place in August, 1926, and was a secret one. The basis of her suit is that after the defendant learned of their marriage, he, as she asserts, not only disapproved of it but used every effort to bring about a separation between her and her husband, and that he succeded in doing so.

When the case came on to be tried, the plaintiff, in support of her claim, called two witnesses, each of whom testified as to conversations had with the plaintiff’s husband, the purport of which was that he desired to have the wedding kept secret because of the effect it would have on the father, who would have been very much opposed to the son’s marrying this girl if he had had any idea that such a thing was likely to happen; and that after the marriage had taken place and the defendant had learned of it “he carried on quite terribly about it.” The trial resulted in a verdict in favor of the plaintiff, and from the judgment entered thereon the defendant has appealed.

The testimony above referred to was admitted over the objection of the defendant, the ground of the objection being that it was incompetent because the conversations referred to did not take place in the presence of the defendant; and the principal ground upon which the appellant relies for a reversal is based upon this alleged error of the trial judge.

In our judgment these conversations were improperly admitted. As was stated by Judge Hiscoek, delivering the opinion of the New York Court of Appeals in Cochran v. Cochran, 196 N. Y. 86, 91, in dealing with the competency of testimony almost identical with that above referred to, and which was admitted in a suit brought by a wife to recover damages from the defendant for alienating the affections of the former’s husband : “This evidence was very prejudicial to the defendant and we know of no authority which justified its introduction. While, of course, plaintiff was required to prove the unlawful conduct of the defendant, and while such unlawful conduct might be evidenced by such acts as were outlined in the evidence referred to, it was incumbent upon her to prove the same by competent testimony, and it was not proper to give evidence of her husband’s declarations on the subject. Such evidence offended against the general rules of evidence and has been specifically condemned in actions similar to this one.” The opinion then goes on to cite the decisions of some of our sister states condemning the admission of such evidence. We are entirely satisfied with the soundness of the legal rule thus declared.

The only other ground of reversal argued before us is the refusal to charge a request submitted by the defendant, the pith of which was that the burden rested upon the plaintiff to show that the defendant wrongfully and willfully attempted to alienate the husband’s affections and that if the jury were not satisfied that the defendant willfully and in bad faith to the plaintiff alienated the affections of her husband their verdict should be for the defendant. Our examination of the charge as delivered satisfies us that it contained the request submitted, in effect; and it is hardly necessary to say that this is all that the trial court is required to do in dealing with the requests to charge submitted by the respective litigants.

Our conclusion is that the judgment under review should be reversed upon the sole ground that there was injurious error in the admission of the testimony which has been heretofore discussed.


text:
    BRONISLAW DOMZALSKI, PLAINTIFF, v. WILLIAM COHEN ET AL., DEFENDANTS.
    Submitted May 11, 1928
    Decided January 16, 1929.
    Before Gtjmmere, Chief Justice, and Justices Parker and Katzenbach.
    For the rule, Ralph N. Kellam.

      Con ira, Albert 8. Woodruff.

   Per Curiam.

This case is before this court upon a defendants’ rule to show cause prosecuted by one of two defendants. On March 4th, 1927, the plaintiff was walking to his place of employment upon the sidewalk of Central avenue in the city of Camden, when two automobiles came in collision at the intersection of Central avenue and Seventh street. A car belonging to the defendants William, Haring Samuel and Rachel Cohen, trading as E. Cohen & Sons, was pushed on the sidewalk. This was the car which struck the plaintiff. The Cohen car (a Chevrolet) was being driven west on Central avenue. The ear of the defendant Reitz (a Chrysler) was being driven north on Seventh street. There was testimony that the Chrysler car was going thirty miles an hour and the Chevrolet twenty-five miles an hour at the time of the accident. Both cars were traveling in excess of the speed limit. Some of the witnesses placed the speed of the Chrysler at forty-five miles an hour. The driver admitted that he was going twenty-five miles an hour.

It is argued by the defendant E. Cohen & Sons who prosecute this rule, that the verdict is contrary to the weight of the evidence. We are not impressed with this contention. We consider the evidence of negligence ample on the part of both defendants to sustain the verdict.

The verdict was for $30,000. It is claimed that this is excessive. The injury was a severe one. It is permanent. The defendant is deprived of thirty-five per cent, of the use of his right leg. The calf of this leg was torn away. The wound became infected. A sloughing ulcer appeared. These conditions, of course, will be to some extent remedied but the efficiency of the leg to the percentage named.will be a permanent disability. The expenses and loss of wages to which the plaintiff was put was about $3,400. The plaintiff earned $35 a week. His age at the time of the accident was forty-five years. Taking into consideration all these elements we have reached the conclusion that the verdict is excessive and should be reduced to $20,000. If the plaintiff will within ten days from the filing of this opinion enter his written consent to the reduction of the verdict to $20,000, the rule will be discharged. If the said reduction is not consented to within said period, the rule will be made absolute.


text:
    JASPER SHARABBA, BY HIS NEXT FRIEND, PLAINTIFF, v. THOMAS McGUIRE AND JAMES McGUIRE, DEFENDANTS.
    Submitted May 11, 1928
    Decided January 16, 1929.

      Before GuMirEEE, Ohiee Justice, and Justices Pabkee and Katzehbach.
    For the rule, Carey & Lane.

      Contra, Quinn, Parsons & Dor emus.

   Pee Cueiam.

This ease is before this court on a defendants’ rule to show cause. The plaintiff, Jasper Sharabba, a boy of fifteen years of age, recovered a judgment for damages for personal injuries against Thomas McGuire, one of two defendants, for the sum of $10,000. On August 4th, 1924, when the plaintiff was eleven years of age he was engaged in delivering milk from a truck of Thomas McGuire. The milk business was owned by Thomas McGuire. His son, James McGuire, was with the plaintiff at the time of the accident. The plaintiff would stand upon the running-board of the truck. As the truck would reach a point where milk was to be delivered, James McGuire, who was driving- the truck would stop and the plaintiff would jump off, deliver the milk, and meet James McGuire, who would in turn stop at the next house where milk was to be delivered and deliver the milk. James McGuire, on the day of the accident, according to the testimony of the plaintiff who was on the running-board, threw his brakes on sharply, jerking the car, and throwing the plaintiff underneath the rear wheel. The result was that the plaintiff’s right foot was severely injured. He went to a hospital. He submitted to three operations. The injury is permanent. The foot is three-fourths of an inch shorter than a normal foot. For the reason that the foot cannot be placed level upon the ground, the plaintiff is obliged to walk upon the bones of the foot with no assistance from the toes. The effect of the injury will increase as the plaintiff matures.

The defense was that Thomas McGuire did not employ the plaintiff. Thomas McGuire had made statements which contradicted this evidence. The trial judge left the relation of the plaintiff to Thomas McGuire to the jury for determination. The result, as stated, was a verdict for the plaintiff.

The defendant contends that the verdict is against the clear weight of the evidence. Thomas McGuire admitted that he was the owner of the Middletown Dairies, and that James McGuire was one of his drivers. While Thomas McGuire testified that he never hired any boys and that none of the boys that were produced at the trial as having been hired by him, had ever worked for him, there was evidence that he had told the plaintiff’s father that the plaintiff was a good worker. There is no question but that the plaintiff was actually on the truck delivering milk. It would seem unlikely that a boy would be doing this work gratuitously. Thomas McGuire admitted that he had seen the face of one of the boys, Prank Donato, and that he might have been around with one of his drivers. This boy testified that he cleaned bottles and was paid money for his work about the dairy. He testified to other boys being there. One witness testified that he was present when the plaintiff was paid $2. We do not feel that upon this testimony the verdict is against the weight of the evidence.

. The defendant contends that there should have been a non-suit and relies on two cases in this court. Glowacky v. Sheffield Farms, 4 N. J. Mis. R. 849, and Kelleher v. Bordens' Condensed Milk Co., 3 N. J. Mis. R. 523. In the latter case the nonsuit, because of exceeding authority, was voluntary, and in the former ease it was unchallenged that the driver acted in defiance of orders and that the company knew nothing of the circumstances. In the present case there was considerable proof of knowledge and acquiescence on the part of the defendant. This justified the submission of the question of relationship to the jury, and also justified the refusal of the court to nonsuit..

The amount of the verdict seems to us to be reasonable. We do not consider that, in the case of a boy of eleven years of age who has had to undergo the pain and suffering and the operations which this boy has gone through, and whose injury is- permanent and will become more troublesome as he grows older, $10,000 is an excessive verdict. The medical testimony supports a verdict of this amount.

The defendant makes the further contention that as no verdict was rendered either for or against James McGuire, the driver, the verdict against Thomas McGuire should be set aside as against the weight of the evidence. In several cases where the same argument has been advanced it has been held that this contention is without merit. The verdict is regarded as no finding against the servant. The verdict against the master will not be disturbed on this ground., Dunbaden v. Castles Ice Cream, Co., 103 N. J. L. 427.

The rule to show cause is discharged.