author: Pee Cttbiam.

text:
    JOSEPH E. CHAMBERS, BY HIS NEXT FRIEND, JOSEPH CHAMBERS, AND JOSEPH CHAMBERS, INDIVIDUALLY, PLAINTIFFS, v. SAMUEL KRAMER AND JOSEPH KRAMER, DEFENDANTS.
    Submitted October 16, 1925
    Decided January 15, 1926
    Filed March 2, 1926.
    Rule to Show Cause—Rule 123 of the Supreme Court Provides That Applications Must be Made Within Six Days—No Matter Not Known to Applicant at the Time Appears—Court Rule Will Not be Relaxed.
    On defendants’ rule to show cause.
    Before Justices Tkencilabd, Katzenbach and Lloyd.
    For the defendants, Kalisch & Kalisch (Tsidor Kalisch, of counsel).
    For the plaintiffs, Collins & Corbin (Edtvard A. MarTcley, of counsel).
   Pee Cttbiam.

This is an application made in behalf of the defendants for a rule to show cause why verdicts rendered in favor of the plaintiffs should not be set aside. The case was instituted in this court. The venue was laid in Union county. The case was on the Union county calendar for the May term, 1925. In order to complete the trials of Supreme Court issues Circuit Court Judge Daly obtained the assistance of Judge Stein, of the Union County Court of Common Pleas. This case was tried by Judge Stein. No order of transfer appears in the record. Both parties, apparently, consented to the trial before Judge Stein. The trial took place on Juno 30th and July 1st, 1925. It resulted in verdicts being returned in favor of Joseph E. Chambers for $2,000 and in favor of Joseph Chambers for $500. Judgments upon these verdicts were duly entered. An application was made to Judge Stein in behalf of the defendants for a rule to show cfiuse why a new trial should not be had. On September 11th, 1935, the application was refused. The defendants now apply to this court for a rule.

Rule 133 of the rules of the Supreme Court reads as follows:

“'133. Such application shall be made ex parte, and within six days after the verdict of finding. The rule when granted shall be forthwith entered by the clerk of this court and proceeded in and brought to hearing in the same manner as heretofore. In default of compliance with the foregoing requirement, no application for a rule to show cause by the party so failing shall be heard by the court, except upon matters which were not known to the party before the expiration of six days after trial. If such rule shall be refused, applications may be made to the court as heretofore. This rule shall not be applied to causes tried ex parte.”

The record presented to us does not show that any application was made to Judge Stein within six days from the rendering of the verdicts, as required by rule 133'. It is inferable that it was made a short time prior to September 11th, 1935. The present application is not based upon any matters which were not known before the expiration of six days after trial. The plaintiffs resist the present application upon the-ground that no application was made to the trial judge within six days after the verdicts were rendered. Unless a strong reason is presented we feel that rule 133 should not be relaxed. A judge who has had the opportunity of seeing the witnesses, hearing their testimony and observing their demeanor while testifying, is in a better position to determine the question of whether a rule to show cause should be allowed than is a court in which the judges have not had the opportunities in this respect of the trial judge. Furthermore, the period within which an application for a rule to show cause to the trial judge is made, is a matter of importance. With the amount of work confronting every trial judge the impressions which he has gathered of the ease must necessarily be impaired by lapse of time. It is partly for this reason that rule 133 makes it compulsory for an application for a rule to be made within six days after the verdict.

Because of the failure to make the application to the trial judge within the time limited by the rule, we have reached the conclusion that the application for the rule should be denied.

The application for the rule is accordingly denied.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    BERGEN BUS LINE, INCORPORATED, PROSECUTOR, v. HACKENSACK IMPROVEMENT COMMISSION, DEFENDANT.
    Submitted October 16, 1925
    Decided January 15, 1926
    Filed March 2, 1926.
    Municipalities—Licenses—Auto Buses—License Granted on Defective Application and Not Within the Time Provided for Within the Ordinance—Resolution of Governing Body Granting License Set Aside.
    On writ of certiorari.

    Before Justices Trenchard, Katzenbach and Lloyd.
    For the prosecutor, Wright, Vander Burgh & McCarthy (Wendell J. Wright, of counsel).
    For the defendant, Be Turck & West.

   Per Curiam.

This case is before us on a writ of certiorari. The writ is directed to the Hackensack improvement commission, the governing body of the city of Hackensack. It brings up a resolution passed by the commission on April 20th, 1925, granting an application made by one Joe Colando for a license to operate auto buses on the streets of Hackensack. The city of Hackensack had, prior to the application of Colando, passed a general ordinance covering the subject of applications for licenses of auto buses. This ordinance defined auto buses, and, among other things, provided that any person desiring to operate auto buses should make an application in writing to the commission, setting forth (a) the name of the owner, (b) whether such owner is an individual, co-partnership or corporation or joint stock company, (c) in case the owner is not an individual, the names of its officers and member, (d) the business address of the applicant, (e) whether the applicant is or will'be vested with the title of the auto bus or whether the applicant is the lessee or represenative of the owner, (f) the proposed route, (g) the location of the proposed regular stops along route within the city, (h) the propoosed schedule of departure, (i) the proposed fare or fares to be charged, (j) the number of auto buses intended to be operated, (k) a place within the city where the bus or buses might be inspected, (1) an agreement to abide by the requirements of the ordinance.

Colando made an application in writing to the commission. It did not comply with the requirements of the ordinance as above set forth. It only stated the number of buses to be operated, the proposed route, and a statement that he agreed to comply with all the rules, regulations and ordinances of the commission. The ordinance also provided that the application should be acted upon within thirty days. When received it was laid over thirty days and referred to the police department to investigate as to the route. The application was received February 16th, 1925. It was not acted upon until April 20th, 1925. No Teport was made by the police department.

The general ordinance also required that the commission should determine that the granting of the license was necessary or' advisable in the interest of the public welfare. Nó such determination was made. The commission having enacted a general ordinance designating the matters required to he set forth by one applying for license to operate auto buses, it was obliged to conform, in dealing with application for licenses, to provisions of the ordinance which it had enacted. This it did not do.

No attack is made upon the status of the prosecutor. In fact, no brief has been filed in behalf of the defendant. The record does not disclose whether or not the prosecutor has such a personal or property interest as will be especially and immediately affected by the action of the commission in granting the license referred to. This is necessary. Montgomery v. Trenton, 36 N. J. L. 79; Tallon v. Hoboken, 60 Id. 212. The presumption is that the standing of the prosecutor was passed on at the time of the allowance of the writ. In the absence of any attack upon the standing of the prosecutor this presumption will be deemed to continue.

The resolution brought up by the writ is set aside, with costs.


author: Pee Ctjkiam.

text:
    LOUIS LUDWIG, PLAINTIFF-RESPONDENT, v. MAX ABERBACH AND FANNIE ABERBACH, DEFENDANTS-APPELLANTS.
    Submitted February term, 1924
    Decided May 5, 1925
    Filed March 2, 1926.
    Sale of Real Estate—Broker's Commissions—Licensed Brokers— Commission Payable Upon Delivery of Deed—Defendant Unable to Give Good Deed Though Plaintiff Produced a Duly Qualified Purchaser—Held, That Plaintiff Had Performed His Contract—Contention That Plaintiff is Not Entitled to Recover Because He is Not a Licensed Broker is Without Merit.
    On appeal from the Elizabeth District Court.
    Before Justices Kalisch, Katzenbach and Lloyd.

      Eor the appellants, Stamler, Stamler & Koestler.

    Eor the respondent, David L. Formcun.

   Pee Ctjkiam.

The plaintiff obtained a judgment in the District Court of Elizabeth against the defendant for the sum of $250 in an action upon a contract for the payment of commission, entered into between the former and the latter, whereby the latter agreed to pay him that sum on the delivery of the deed by the seller to the purchaser. A search disclosed the fact that thé title was defective, in that the building on the property encroached upon the street line. Whereupon the prospective vendee refused to take title to the property, and the prospective vendor refused to pay to the plaintiff any commission.

There was a motion for a direction of a verdict in favor of the defendant upon two grounds—;firstly, that the contract calls for the payment of a commission on the delivery of the deed, and there was no such delivery for the reason of the defective title, in that the building upon the property overlaps the public street, and the purchaser refused to take title; secondly, that the plaintiff was not licensed to act as a broker.

The District Court judge refused this motion upon two grounds—first, that it made no difference whether the title passed so long as the broker produced a purchaser who was ready, able and willing- to buy, and secondly, that the fact whether or not the plaintiff was duly licensed as a real estate broker was inconsequential. Whereupon the trial judge gave judgment for the plaintiff in the sum of $250, with costs, from which judgment the defendant appealed to this court.

We think the cause was rightly determined. It was the fault of the prospective vendor that there was no delivery of the deed. The plaintiff has performed all that he was -called upon to perform under his contract, namely, to procure a purchaser who was ready, willing and able to buy. This fact is not denied. The reason for non-delivery of a deed was directly due to the defendant’s inability to give a good title. The plaintiff ought not be made to suffer on that account. If it was intended that no commission was to be paid unless an actual sale was consummated by the delivery of a deed it should have been explicitly so stated in the contract. The agent has a right to rely on his principal being able to give a perfect title to a prospective purchaser. If the principal was not in such a position, then he ought not be permitted to escape paying the commissions agreed upon by reason of his inability to deliver a good and sufficient deed for the property. It would be in harmony with the’intent of the parties, as expressed in the contract, that the commissions were to be paid on the day fixed for the delivery of the deed. There is no merit in the contention that the plaintiff is not entitled to recover for the reason that he is not a duly licensed broker.

The judgment should be affirmed, with costs.


author: Pee Cueiam.

text:
    PETER GREINER, PROSECUTOR, v. THE TOWNSHIP OF WOODBRIDGE ET AL., DEFENDANTS.
    Argued October 7, 1925
    Decided March 2, 1926.
    Municipalities!—Vacation of Streets and Public Squares or Public Places—Contention of Defendant That the Land in Question Had Not Been Accepted by Municipality Sustained, and Ordinance Affirmed.
    On certiorari, &c.
    Before Justices Trenchaed, Katzenbach and Lloyd.
    For the prosecutor, Ephraim, Cutter.

    For the defendants, J. H. Thayer Martin.

   Pee Cueiam.

This writ brings np for review an ordinance vacating a tract of land in the township of Woodbridge, which is referred to in the ordinance as a part of- Rahway avenne, but which-the prosecutor contends “is a part of a public square,” that part being vacated having an average width of fifty feet and length of sixty-three feet, and being described by metes and bounds.

Apparently, the prosecutor’s contention in the application for this writ was that the ordinance to vacate was void because the vacated land was part of a park, and the township for that reason had- no authority to vacate the land. This contention appears to be the ground on which the writ was allowed. Prosecutor now seems to have abandoned any claim' that there was any park here, and now contends it was a public square. accepted by the public, and as such hot subject to vacation. Defendant relies on express statutory authority to vacate, found in the act concerning municipalities, as follows: Article 33, section 1(b) (Pamph. L. 1918, p. 487; Cum. Supp., pp. 2227, 2228), declaring that “1. The governing body of every municipality shall have power to make, publish, enforce, amend or repeal ordinances.” * * *

“(b) To vacate any street, avenue, highway, lane or alley, or portion thereof. Any ordinance for this purpose shall only be passed after public notice of the intention of the governing body to consider the same has been published once at least ten days prior to the date of the passage óf such ordinance in a newspaper circulating in ,the. municipality, which said notice shall designate the time and place, when and where such governing body will consider the said ordinance. At the time and place so designated, or at any other time or place to which the meeting shall have adjourned, all persons whose lands may be affected by such ordinance, or who may be interested therein, shall be given an opportunity to be heard concerning the same:”

And article 33, section 4 (Pamph. L. 1917, p. 406; Cum. Supp., p. 2229), declaring that—

“4: Whenever in any municipality there has been heretofore, or shall be hereafter, a dedication of lands as a public street or highway, or as a public square or public place, and the same has not been accepted or opened by the municipality, and it shall appear to the governing body that the public interest will be better served by releasing said lands or any part thereof from such dedication, said governing body shall have power by ordinance to release and extinguish the public right arising from said dedication as to the whole or any part of said lands, and thereupon said lands, or the part thereof so released, shall be effectually discharged therefrom as though said dedication had not taken place; provided, however, that notice of the intention of the governing body to consider any such ordinance, and a hearing thereon, shall be given as is herein provided concerning ordinances for the vacation of streets.”

This seems to give full and complete authority, if this was a part of a street, to vacate it unconditionally under 1(b); if not a street, but part of a public square, then to vacate the public right on the sole condition that the part vacated had not been accepted or opened by the municipality.

Our examination of the case discloses to our satisfaction that the vacated strip is nothing but a piece of waste land. While it has always been free to the public, there is no evidence of any use ever having been made of the vacated strip except that masons used to dig sand from it. Prosecutor’s witness Brennon said: “I never remember it being used for anything only taking sand out of it.” In short, we assume, as contended by the prosecutor, that the vacated land had been dedicated as a public square. The ordinance recites, in the language of the statute, that it appears to the governing body that the public interest would be better served by releasing the same from such dedication, and, accordingly, the public right arising from such dedication was released and extinguished by the ordinance, which it is not questioned was properly passed, after due notice, as required by the statute. This it was competent for the governing body to do provided that part of the public square vacated had not been accepted or opened by the municipality.

The prosecutor contends, and the defendant denies, that it had been accepted or opened by the municipality.-

We think the defendant is right. We find no evidence whatsoever of any opening or acceptance of the vacated land in question by the municipality.

We believe that these views dispose of the main contention of the prosecutor.

We have' examined with care the other objections made to the ordinance in question, and we think that it is sufficient so say that we find no merit in them.

The result is that the ordinance will be affirmed, with costs.


author: Pee Cukiam.

text:
    MORRIS BLOOM, RELATOR, v. VENTNOR CITY, A MUNICIPAL CORPORATION, AND W. HARRY JONES, BUILDING INSPECTOR, RESPONDENT.
    Argued October 8, 1925
    Decided January 15, 1926
    Filed March 2, 1926.
    Zoning — Erection of Garage—Municipality Contended That Garage in the Particular Locality Would be Injurious to Health, Safety and General Welfare, and is Not Affected by the Zoning Decisions—Held, That the Ordinance Is Unreasonable, That it Prevents the Erection of Garages in the Only Section Where They Would be of Convenience, That Garages Are Not Per Se Detrimental, but in the Present Day Necessary.
    On rule to show cause why a peremptory writ of mandamus should not be awarded.
    Before Justices Trenchard, Katzenbach and Lloyd.
    For tl e relator, Cole & Cole.

      For the respondent, John 8. Westcott (Hiram Steelman, of counsel).
   Pee Cukiam.

This case is before us upon a rule to show cause why a peremptory writ of mandamus should not be awarded requiring the building inspector of Yentnor City to issue a permit to the relator, Morris Bloom, authorizing the erection of a public garage upon lands of the relator. The stipulation under which the ease is submitted states that the plans and specifications submitted by the relator comply with the building code of Yentnor City.

The refusal to grant the permit is based upon an ordinance of Yentnor City, passed May 21st, 1917, making it unlawful to erect, construct, build or remodel any building for use as a public garage in Yentnor City, within the district bound on the east by the middle line of Jackson avenue, on the north by the middle line of the Inside Thorofare, on the west by the middle line of Fredericksburg avenue, and on the south by the Atlantic ocean. This territory includes the business section of Yentnor City. Substantially all the land which the ordinance excludes from its provisions is located across a waterway known as Inside Thorofare. This land is remote from the business section. Opposite the land upon which the relator desires to erect the garage there is a gasoline station. Within the block which it is desired to erect the proposed garage is now located a Catholic church, with church buildings, a four-story building used as a public institution for invalids and convalescents, the Jewish Seaside Home for Invalids, buildings for business and residential purposes (semi-fireproof and non-fireproof). A public telephone exchange built of stone is in course of construction upon the block. The nearest point of the church building to the proposed garage of the relator is three hundred feet.

■ 'The city contends that this ordinance which prohibits the erection of' garages within the limits mentioned is a proper exercise of the police power for the purpose of protecting the life, safety and' property of the inhabitants of Ventnor City, and that the authority for its passage is to be found in chapter 152 of the laws of 1917 (at p. 357). Article 14, § 2. The city further contends that -the zoning decisions have no application to the present case.

We have examined the ordinance upon which the defendant rests its refusal to grant the building permit. It does not, as we view it, regulate the location and building of garages in the interest of the public health, safety or general welfare. It amounts to a prohibition of public garages within the' only section of Ventnor City in which public garages would be a convenience to the public. We think the ordinance unreasonable. There is nothing in a garage which makes it per se detrimental to public health, safety or welfare. Reimer v. Dallas, 3 N. J. Adv. R. 1302. Public garages may be.said to be a necessity' in this day of the growing use of the automobile. The place for their erection is where they will be a convenience for the public.

A peremptory writ of mandamus is awarded.


author: Pee Cubiam.

text:
    FREDERICK McCLURE ET UX. v. PUBLIC SERVICE RAILWAY COMPANY.
    Decided February 24, 1926.
    Negligence—Injury to Trolley Car Passenger—Passenger Thrown and Injured Through Sudden Stopping and Starting of Car— Judgment for Plaintiff Contested on Ground of Alleged Erroneous Charges Relating to Duty of Carriers Regarding Stopping and Starting, and of the Degree of Care With Which They are Charged—Held, That as Applied to This Case, Charges Were Accurate.
    On defendant’s rule to show cause.
    Before Gtjmmeee, Chief Justice, and Justices Kalisch and Campbell.
    Eor the rule, Leonard J. Tynan.

    Contra, Walter L. Glenney.

   Pee Cubiam.

This action was brought to recover compensation for injuries received by Mrs. McClure, while a passenger on a car of the defendant company, and also compensation to the husband for loss of consortium and expenses incurred by him as a result of his wife’s injuries. The trial resulted in verdicts in favor of the husband and wife, $2,500 being allowed to the wife and $1,000 being awarded to the husband.

The plaintiffs’ ease was that Mrs. McClure, after having boarded the defendant’s car in Montclair and deposited her fare in the box, and while entering the body of the car and before having reached a seat, was thrown to the floor by the sudden stoppage of the car, and then its starting up again with an unexpected and violent jerk. The jury accepted hei statement of the factors which had been recited, finding that this sudden stopping and starting of the car was an act of negligence on the part of the motormun, and that the accident to Mrs. McClure was one for which she was not responsible because of any carelessness on her part.

The first ground upon which we are asked to set these verdicts aside is that they were against the weight of the evidence on the question of the sudden starting of the car and the unusual and violent jerk resulting therefrom. Our reading of the proofs satisfies us that the jury was justified in its finding upon this question.

Next, it is contended that the court erroneously charged the jury as follows: “If it be true that the car was started ■with a terrific jerk, an unusual jerk, and she herself was in the exercise of due care, the plaintiff is entitled to your verdict.” The argument in support of this contention is that the court was not justified in saying that the mere fact that the car was started forward with a terrific and unusual jerk spoke negligence on- the part of the motormar'.. There was no suggestion in the testimony either of the defendant or the plaintiffs that this “jerk” was due to anything unconnected with the operation of the car, and, in the absence of such testimony, the court was entirely justified,, we think, in the statement which has been criticised.

The only other ground upon which defendant asks to have the verdicts set aside is that the court erroneously charged the jury that “a trolley company, which is a carrier of passengers, is required to exercise towards its passengers a high degree of care, and, if it starts its car before the passengers are seated, with a sudden or unusnal jerk or other motion, which results in causing injury to a passenger, and the passenger is in the exercise of due care, the company is responsible for the result of such injury.” Whether as an abstract proposition this legal rule is altogether sound is a matter which need not be considered. As applied to the proofs in the case (and this was what the court was dealing with) it was entirely accurate.

This rule to show cause will be discharged.


text:
    HARRISON IMPROVEMENT COMPANY v. JOHN G. SCOTT, BUILDING INSPECTOR, AND THE CITY OF EAST ORANGE.
    Decided February 24, 1926.
    Zoning—Stores in Residence Section—Case Follows Igr.aciunas v. Risley—Appeal to Board of Adjustment Not Necessary.
    On demurrer to a return to an alternative 'writ of mandamus.

    Before Gummeee, Chief Justice, and Justices Kalisck and Campbell.
    For the relator, Aaron Harder.

    For the respondents, Walter 0. Ellis.

   Pee Cueiam.

The relator at the time of the institution of this suit was the owner in fee of certain land in the city of East Orange, located at the corner of Park avenue and North Munn avenue. It applied to the building inspector of that municipality for a permit to erect upon the lot four one-story brick structures, each structure to contain three stores and two apartments in the rear of said stores. The application was refused by Scott, the building inspector, upon the sole ground that the zoning ordinance of the municipality prohibited the erection of buildings of the character described in the zoning district in which the relator’s plot was located.

The first contention of counsel for the respondents made on the hearing before us is that the building inspector was justified in his refusal to issue a permit which would allow the relator to violate the zoning ordinance of the city. This contention is in the face of the decision of the Court of Errors and Appeals in the case of Ignaciunas v. Risley 2 N. J. Adv. R. 852, and subsequent decisions of that court involving the validity of zoning ordinances.

It is further contended on the part of the respondents that the' present proceeding is premature, the proper remedy of the relator being .first to appeal to the boa rd of adjustment to review the action of the building inspector; and then, in case it was dissatisfied with the adjudication ol the board, to review that adjudication by certiorari. Since the argument of the present case this question was twice considered by the Court of Errors and Appeals (Krumgold & Sons v. Jersey City, 3 N. J. Adv. R. 1546, and Losick v. Binda, Id. 1691), and decided adversely to the contention of the present respondents.

A peremptory writ of mandamus wi/I be allowed directing Scott, the building inspector of the municipality, to issue a permit to the application of the relator.


text:
    ELIZABETH KELLY ET AL. v. JOSEPH STERN.
    Decided February 24, 1924.
    Negligence—Carelessness of Dentist In Use of Hypodermic Needle—Question for Jury to Determine Whether Needle was Inserted With Due Care—Evidence Justified Jury’s Decision That it was Not.
    On appeal from the Hudson Circuit Court.
    Before Gummere, Chief Justice, and Justices Kalisch and Campbell.
    For the appellant, Collins & Corbin.

    For the respondents, .Alexander Simpson and Warren, Britt & Stanton.

   Per Curiam.

Elizabeth Kelly, one of the plaintiffs, a young woman twenty years old, went to the office of the defendant, who was a dental surgeon, to have a tooth treated. He attempted to inject a local anesthetic in the jaw, using a hypodermic needle for that purpose; and, according to the story of the girl, suddenly jammed it in against the bone, causing the needle to break off. A part of the needle was left in the jaw, and still remains there, notwithstanding the attempts of the defendant and of other surgeons to remove it. The suit was brought to recover compensation for the injury sustained by the girl by reason of the alleged carelessness of the defendant in his use of the needle, the girl’s mother being also a plaintiff in the suit. The jury rendered a verdict in favor of the plaintiffs, and from the judgment entered thereon the defendant has appealed.

The only ground of reversal argued on behalf of the appellant is that the trial court should have nonsuited or should have directed a verdict for the defendant, because of the fact there was no evidence whatever of any negligence on the part of the defendant in the use of the needle. The argument in support of this contention is that the proof conclusively showed that a needle often breaks while being used for the purpose of injecting a local anesthetic into the jaw, even though due care is exercised, and that there was nothing in the present case to support a finding of lack of due care on the part of the defendant. We think that there was such evidence. It was shown that the proper method of pushing the needle in was by a slow and careful movement. The testimony of the girl was that it was suddenly jammed into the gum, and that she then felt the point of the needle strike the bone, and felt it break off. It was for the jury to say whether her story was true, and, if it was true, whether it did not justify a finding of negligence on the part of the defendant in the use of the needle.

The judgment under review will be affirmed.


text:
    JULIANO CONSTRUCTION COMPANY, RELATOR, v. FREDERICK BIGELOW, BUILDING SUPERINTENDENT, AND THE BOARD OF ADJUSTMENT OF THE CITY OF NEWARK, DEFENDANTS.
    Submitted October 16, 1925
    Decided February 5, 1926
    Filed March 2, 1926.
    Zoning—Apartment-House, in Residential District—Case Within Rule of ignaciunas v. Risley.
    On rule to show cause why a peremptory or alternative writ of mandamus should not be issued.
    Before Justices Teenchard, Katzenbach and Lloyd.
    Eor the relator, Kerr & Potter (Harold F. Dorgeval, of counsel).
    Eor the defendants, Jerome T. Congleton and Charles M. Myers.

   Per Curiam.

This case is before us on a rule to show cause why a peremptory or alternative writ of mandamus should not be issued out of this court enjoining the respondent Frederick Bigelow, building superintendent of the city of Newark, and the board of adjustment of the city of Newark, to issue a building permit granting to .the delator the right to erect an apartment-house with stores on the ground floor, and one two-car garage on premises known as 641, 647 Summer avenue, in the city of Newark. The facts have been stipulated. From these yt appears that the relator is the owner of a tract of land at the southeast corner of Summer avenue and Carteret street, in the city of Newark. The premises are free and clear of all restrictions. On July 14th, 1925, the relator applied to the superintendent of buildings of the city of Newark for a permit to construct the improvements mentioned upon his property, and submitted to him plans and specifications therefore which had previously been approved by the state board of tenement-house supervision. On July 20th, 1925, the said superintendent of buildings refused to issue a permit upon the ground that the proposed building would constitute a violation of article 1, section 2 of the zoning ordinance of the city of Newark, adopted December 31st, 1919, which classified the district in which the relator’s lot is located as a residential district for which building permits could only be issued for certain classes of buildings. The building proposed to be built by the relator did not fall within any of these classifications. On July 30th, 1925, the relator appealed to the board of adjustment of the city of Newark, organized under chapter 146 of the laws of 1924. On September 3d, 1925, this board affirmed the action of the building superintendent.

Summer avenue is a thoroughfare seventy-five feet in width. The proporty surrounding the relator’s property consists mostly of two- or three-family houses. Opposite the relator’s property is a church and parish house. A parochial school is four hundred feet distant. Opposite the school is a series of one-car garages. On Carteret street, one block east of Summer avenue, at Lincoln avenue, there is a factory in operation, and at the corner diagonally opposite the factory are a number of stores.

We see no question involved in the present application which has not been heretofore settled. The case, in our opinion, falls within Ignaciunas v. Risley, 98 N. J. L. 712; affirmed, 125 Atl. Rep. 121. The case of Builders Realty Co. v. Bigelow, 128 Id. 887, is directly in point. The property involved in this latter case was upon Summer avenue.

In view of these decisions, we think the relator is entitled to a peremptory writ of mandamus. A peremptory writ of mandamus is accordingly awarded.


text:
    AUGUSTINE HEXAMER, ADMINISTRATRIX AD PROSEQUENDUM OF WILLIAM HEXAMER, DECEASED, PLAINTIFF, v. PUBLIC SERVICE RAILWAY COMPANY, DEFENDANT.
    Decided February 26, 1926.
    Negligence—Death Through Trolley Company's Alleged Negligence in Improperly Maintaining Its Station Platform and in • Operating its Cars Negligently—Decedent Tripped on Platform and was Run Over by Approaching Car—Plaintiff’s Judgment Held Not Excessive—Defendant Not Entitled to "Have Independent Income Considered in Mitigation of Damages—Verdict Not Contrary to Weight of Evidence—Trial Judge Charged Proper Rule.
    'On defendant’s rule to show cause.
    Before Gummebe, Chief Justice, and Justices Kalisch and Campbell.
    Por the rule, Alexander Simpson.

      Gonlra, Leonard J. Tynan.

   Pee Cubiam.

The complainant’s decedent was killed by a westbound trolley car on November 20th, 1922, at the defendant’s elevated station in Hoboken. The case was tried in the Hudson -Circuit- and there was a verdict for the plaintiff for $10,500. -The. action was for negligence in maintaining a defective platform and also for negligently operating its trolley cars. The eighth paragraph of the amended complaint alleges that the deceased was on the platform, that it was out of repair, defective, -improperly lighted and the boards thereof projected in a way dangerous to persons thereon, &c. The ninth paragraph avers that because of the condition of the platform aforesaid, so caused by the failure of the defendant to use reasonable care in the maintaining, operating and repairing, and lighting thereof, the plaintiff’s decedent, while upon the platform waiting for a car, tripped and fell upon the tracks of the defendant, upon which its cars were propelled. The tenth paragraph avers that at the time of the accident, when the plaintiff’s decedent fell upon the tracks, there was a car approaching some distance away from the place where he fell upon the said tracks.

The eleventh paragraph avers that the car was negligently propelled against him. The twelfth paragraph sots forth that the negligence of the defendant in the last paragraph consisted in failure of the defendant to use reasonable care to propel said car at a safe rate of speed; to give warning of the approach thereof ; to keep a look out for persons at or near the track so as to avoid injuring them; to have the said1 car under control so it could be stopped within reasonable distance; to heed a signal or warning given to the motorman by a person or persons upon the said platform to stop the said car at the said time.

The first reason presented for a new trial is that the damages are excessive. The deceased was fifty-four years old at the time of his death. He was a druggist. His widow was fifty-seven. He carried on the drug business for seven years for his own profit. He earned about $45 a day. He allowed his wife $20 a week for the table; furnished her with clothes and other things that she Required. He occupied apartments for which he paid $65 a month. After his death the widow sold the store for $6,500. There was also proof that the clear profit of her husband was $25 a day.

We cannot say, in view of the evidence as to the husband’s business capacity and his earnings and his future prospect of greater prosperity, based upon his past business career, his thrift, his generous conduct toward his wife, he being fifty-four and she fifty-seven years of age at the time of Ms death, that the award of the sum of $10,500 is excessive, in that the jury speculated wrongly in arriving at that figure, or that the verdict was clearly the result of mistake,’passion, partiality or prejudice on part of the jury. The reasonable expectation of life of the husband and the reasonable expectation of the life of the wife, and the probable prospective pecuniary benefits she would have derived from him if he had continued in life, while partly of a speculative character, was an element pre-eminently for a jury to pass upon, and with the evidence before us, we think a proper result was reached.

Th'e contention on part of the defendant is that the jury in arriving at its verdict was entitled to take into consideration the fact that the widow, who inherited the plaintiff’s decedent’s store had received therefor $6,500, and as this was a btenefit or pecuniary gain to her, the trial judge wrongfully struck out such testimony which was elicited from, her on cross-examination, and thus eliminated a factor in the case from the consideration of the jury which tended to lessen the amount of her pecuniary loss. We think the testimony was properly struck out. According to the trend of authority such testimony is inadmissible. Muradian v. Paganessi, 128 Atl. Rep. 158; Brabham, v. Baltimore and Ohio Railroad Co., 220 Fed. Rep. 35; L. R. A. (1915) E. 1201; Clune v. Ristine, 36 C. C. A. 450; 94 Fed. Rep. 745; 6 Am. Neg. Rep. 416. In that case, Judge Thayer, who delivered the opinion of the court, said: “In the course of the trial the court permitted the defendant to prove, by way of mitigating the damages which the plaintiff might recover, that she had collected from an insurance company, after the death of her son, the sum of about $2,000, and for that reason was not entitled to recover to the full extent of her loss. An exception was taken to the admission of such evidence. We think the testimony should have been excluded and that the objection thereto was well taken. When an action is brought against a wrong-doer, he is not entitled to have the damages consequent upon the commission of his wrongful act reduced by proving that the plaintiff has received compensation for the loss from a collateral source wholly independent of himself.- This doctrine is well established by the authorities and is applicable to the case in hand. Suth. Dam. (2d ed.), § 158, and cases there cited. The cases on this topic are collated in Brabham v. Baltimore and Ohio Railroad Co., supra.

Next, it is argued that the verdict is contrary to the weight of the evidence.

There is no merit in this contention. There was ample testimony to the effect that the station platform was in a defective condition and illy lighted. The platform was worn, in that some of the hoards were projecting above the other boards, and some of the boards had knots which were projecting above the knot holes; that the deceased was walking along on the platform, which is about one hundred and five feet in length and six feet in width, the edge of which platform is within two and a half feet of the first rail of the westbound car track and is unguarded, and he had walked to the edge of the platform, where he tripped over one of the projecting boards or knots, and fell upon the tracks, when the defendant’s car came along and was, as estimated by witnesses, fifty feet or more away from the place where the plaintiff’s decedent was lying, and ran over him. It is, however, a matter of no importance, under the facts of the case, as to the distance the car was away from the place where the plaintiff’s decedent was lying after he fell from the platform, for the jury was warranted in finding from evidence that he fell from the platform to the tracks below, by reason of a defect in the defendant’s platform.

It is further argued by defendant’s counsel, under reasons four and five, that the defendant was harmed in its defense by the trial judge excluding the following questions put to Max Oster, the plaintiff’s witness, by the defendant’s counsel on cross-examination: “Q. I ask you whether or not at that time you formed an opinion as to whether that man was drunk or not?” And, again, after the witness had his attention called to a statement made by him in writing to a representative of the defendant and which was read in the presence of the jury, and in which the witness stated, among other things, “the man was steady on his feet, hut he was talking so loud I thought he was intoxicated; ” and was asked whether that was not the fact the witness answered: “That is the fact, because he was talking loud, and that is what it was in my mind, because if I said that, if I talk to a woman, I no talk so loud.” This answer was followed by the question: “Do you still think so?” and, being objected to, the objection was sustained. But even if the rulings of the trial judge, in excluding the questions, were erroneous we perceive no harm done to the defendant, because the witness was permitted to answer the question immediately following the excluded one, which was: “At the time that you made this statment on Eebruary 7th, 1923, about two months after this accident, did you then think this man was drunk.” “A. That is what I thought, because he was talking loud—that is what I told the lawyer when he took my statement.” “And you still think so?” “A. I still think so, because he was talking loud—that’s all the question was.” So,- it is quite apparent if there was an erroneous ruling, in excluding the questions previously put to the witness on cross-examination, iijs alleged harmful effect, if any, was done away with by the subsequent questions and answer put to the witness by defendant’s counsel.

The ground urged for a new trial under point seven of defendant’s brief is purely hypercritical. It is argued that because the trial judge in his charge to the jury, in speaking on the duty of the defendant in relation to the construction and maintaining of its station platforms, said that it was its duty to construct a station safe for its passengers; that this, in effedt, was tantamount to a charge that the defendant was an insurer of the safety of its passengers. Generally speaking, it was the duty of the company to construct a safe station platform, and he made it quite clear that the defendant was not an insurer of the safety of the passengers, for he said, in connection therewith: “There is no proof that this station differs in its character from stations in general used by the defendant and other car companies. Negligence must be proved in a cause like the present. That can be done only by showing that the platform is of a design which a reasonably careful person with a reasonable judgment would disapprove of being likely to cause accidents to persons using it to and from trains.”

We perceive nothing properly objeetional in this statement of the legal rule.

Lastly, under reasons eight and nine, it is contended, on behalf of the defendant, that the trial judge erroneously charged as follows: “If you find that the company was not negligent in keeping the platform in a safe condition, still, if you find from the evidence that the deceased fell from the platform, and, while on the track, was killed by the negligence of the motorman operating this car the plaintiff could recover in this case, if the deceased was not guilty of contributory negligence.” Now, this motorman was required to use the care and caution that a reasonable prudent man would have used in operating a trolley car of this description at that particular time, and if you find from the evidence that this motorman was negligent and did not stop his car, and that the deceased’s death was caused by the negligence of the motorman in not properly managing his car, then the plaintiff can recover, if the deceased was not guilty of contributory negligence.

No exception was taken to the charge. The argument made is that if the deceased came upon the tracks, even though without his own fault, he was a trespasser, and that the defendant company owed him no duty except to abstain from doing him a willful injury. There is no testimony in the case that the tracks of the company are on its private right of way. Eor aught that appears, it is a street railway extending along a public highway. The case was submitted to the jury upon two theories: (1) Defective condition of the platform, which was alleged to have caused the plaintiff’s decedent to trip and fall upon the tracks. (2) The decedent being upon the defendant’s tracks in a prostrate position, and, if without his fault, whether the defendant’s motorman, if he had been on the alert and in the exercise of ordinary care, would have been able to notice the decedent’s perilous position in time to have stopped his car and avoided injuring him. Counsel of defendant apparently acquiesced in the course taken by the trial judge, for, as has been said, he took no exception to what the court said on the subject.

We think that, under the evidence in the .cause, the trial judge charged the proper legal rule applicable thereto. Rule to show cause is discharged, with costs.


text:
    LOUISE LUKER ET AL. v. JAMES W. YOUNG ET UX.
    Decided February 24, 1926.
    Negligence—Motor Vehicle Injury to Pedestrian—Contributory Negligence Not Shown—Verdict Not Contrary to Weight of Evidence—Verdict Both for Father and Injured Person Excessive—Reduced to $10,000 and $15,000, Respectively.
    On defendant’s rule to show cause.
    Before Gummere, Chief Justice, and Justices Kalisch and Campbell.
    Por the rule, William K. Flanagan.

      Contra, Reilly, Quinn & Parsons.

   Per Curiam.

This action was brought by Louise Luker, a girl about twenty years of age, to recover compensation for injuries received by her in being run down by an automobile belonging to the defendant James W. Young, and driven by his wife. Her father also claimed to be entitled to compensation for the loss of the services of his daughter and the expenses to which he was put by reason of her injuries. The fctiffll resulted in favor of the plaintiffs, the jury awarding ike girl $20,000 and the father $15,000.

The first contention submitted by the defendants as a reason for making the present rule absolute, is that the trial court should have directed a nonsuit because contributory negligence on the part of the girl, Louise, was conclusively shown. This assertion, we think, is contrary to the fact. If the accident happened in the way described by her on the witness-stand, it was at least doubtful whether she was guilty of any negligence contributing to the accident, and whether or not her story was a truthful description of the conditions under which the accident occurred was a matter for the determination of the jury.

It is next argued that the verdicts are contrary to the weight of the evidence. In disposing of this contention, it is enough to say that our examination of the proofs sent up with the rule leads us to the opposite conclusion.

Lastly, it is said that the verdicts are excessive. Notwithstanding the fact that the girl was seriously injured, according to the testimony of physicians who gave evidence in her behalf, and whose testimony the jury was entitled to accept, we think this contention on the part of the defendants is sound. We also think that the award to the father was plainly excessive.

If the plaintiffs will consent to reduce the verdict in favor of Louise to $15,000, and that in favor of the father to $10,000 the rule to show cause will be discharged. Otherwise, it will he made absolute.


author: Peb Cubiam.

text:
    MERRITT E. STID v. EDWARD LIEBERMAN.
    Decided February 24, 1926.
    Trespass—Cutting Timber Without Legal Right—Plaintiff and His Predecessor in Occupation Had Been In Possession for More Than Twenty Years—Action for Trespass is a Possessory Action—Jury Found no Contract for the Cutting of Timber—Value of Timber, Though Not Very Satisfactorily Determined, it Cannot be Said That the Evidence Did Not Support an Award.
    On defendant’s rule to show cause.
    Before Gummebe, Chief Justice, and Justices Kalis ch and Campbell.
    Eor the rule, Jay B. Tomlinson.

      Contra, James Mercer I)axis.

   Peb Cubiam.

This was an action for trespass. The plaintiff’s case was that the defendant came upon his land, and, without legal right, cut down and took away standing timber upon two separate tracts, described in the ease as the triangular tract and the locust timber tract. The jury found a verdict in his favor, awarding him as damages $80 for the cutting and taking away of the timber on the triangular tract and $500 for the cutting and taking away of the timber on the other tract.

We are asked to set aside the verdict, so far as it awarded damages for the cutting of timber on the triangular tract, for the reason that there was no proof of ownership thereof in the plaintiff. There was evidence that he and his predecessor in occupation had been in possession of that land for much more than twenty years, and that raises a presumption of title by adverse possession in the plaintiff. But proof of ownership by the plaintiff was not a necessary element in determining his right to recover damages for the' unlawful act of the defendant. An action of trespass to land is a possessory action, and the party in possession is entitled to recover for injury done to the freehold to the extent of that injury unless the defendant shows something in mitigation of damages. Todd v. Jackson, 26 N. J. L. 525, 538; Lehigh, &c., Railway Co. v. Antalics, 81 Id. 686.

It is further argued that, so far as the timber on the locust tract whs concerned, the defendant was authorized to cut it under a contract entered into between him and the plaintiff. Whether this was so or not was a question of fact, to be resolved by the jury, and we cannot say that its finding in this respect was contrary to.the weight of the evidence.

Lastly, it is argued that there was no proof in the case to justify the "award of the jury with relation to the value of the timber on either of these tracts, because such value was left in complete uncertainty by the testimony. Although the evidence was not very satisfactory, we cannot say that it did not support the award.

The rule to show cause will he discharged.


text:
    MINNIE SCOTT v. ATLANTIC CITY AND SHORE RAILROAD COMPANY.
    Decided February 24, 1926.
    Negligence—injury to Passenger While Alighting From Street Car—Car was Stopped Not at a Regular Stopping Place, but Passengers Were Allowed to Alight—Plaintiff Also Attempted to Alight, but Car Started Before She Succeeded in Doing so—Held, Question for Jury to Determine—Judge's Charge was Proper.
    On defendant’s rule to show cause.

      Before Gummere, Chief Justice, and Justices Kalisch and Campbell.
    Eor the rule, Bourgeois & Coulomb.

      Contra, Carlton Godfrey and William I. Garrison.

   Per Curiam.

, The plaintiff was a passenger on a car of the defendant company, riding from Pleasantville to Atlantic City. The testimony .offered by her at the trial disclosed the following situation. When the car had reached a point about half way between Baltic and Arctic avenues, and opposite a warehouse belonging to a man named Eldridge, it came to a stop. This was near the point where the plaintiff had intended to get off. She got up to do so. Several other persons did the same thing, at least two, perhaps more. The door of the car was open, permitting the disembarkation of passengers, and after the others had got off, and just as the plaintiff had got one foot on the ground, the ear started suddenly forward, causing her to fall, and inflicting the injuries for which she sued. The jury evidently accepted her version of the conditions under which the accident happened, and rendered a verdict in her favor. The defendant on this rule claims that the verdict should be set aside because of errors committed by the trial court.

The first contention before us is that the trial court should have directed a verdict for the defendant because of absolute lack of any negligence on the part of the defendant company’s motorman, the basis of the contention being that it had been conclusively shown that the car was not stopped for the purpose of taking on or letting off passengers, but solely because its progress was temporarily obstructed by a truck of the Eldridge concern that had been backed up against ■ the curb. It seems to us that this contention is without merit. In our opinion, when a ear is brought to a stop under the circumstances alluded to (that is, at a place other than a regular stopping point), and passengers are permitted to alight from it without warning, and do so in safety, and other passengers are attempting to alight, also without warning, the starting up of the car before all the passengers intending to get off have succeeded in doing so, raises a question of negligence on the part of the operator of the car which must be passed upon by the jury.

The only other grounds urged for setting aside the verdict are directed at the charge to the jury and to the refusal of the court to charge a request submitted on behalf of the defendant. 'Our consideration of the case satisfies us that the charge was legally unobjectionable as the law of the case, and that the request submitted was properly refused.

The rule to show cause will be discharged.


text:
    STATE OF NEW JERSEY, DEFENDANT IN ERROR, v. ANTHONY J. BULLOCK, PLAINTIFF IN ERROR.
    Argued March 3, 1925
    Decided February 8, 1926
    Filed February 23, 1926.
    Crimes—Rape—Verdict of Jury Not Found to be Against Weight of Evidence—While Verdict of Jury Seemed Illogical and Inconsistent, it Need Not be Illegal.
    On writ of error to the Cape May County Court of General Quarter Sessions.
    Before Justices Pahkeb and Katzenbach.
    For the plaintiff in error, James M. E. Hildreth and Henry M. Hartmann.

    For +he defendant in error, William H. Campbell, Jr. (John W. Westcott, of counsel).
   Pee Cueiam.

This case is before us on a writ of error. The writ was directed to the Court of General Quarter Sessions of Cape May county. It brings up the conviction of Anthony 'J. Bullock under an indictment charging him with the rape of Eleanor E. Mishler. The indictment under which the plaintiff in error was convicted jointly charged him and his daughter, Mary Bullock, of having committed the crime. The jury acquitted Mary Bullock and returned a verdict of guilty against Bullock.

The plaintiff in error lived at Wildwood, New Jersey. It is inferable from the testimony that he is a man of considerable wealth. He was fifty-nine years of age at the time of the commission of the alleged crime. His daughter was then twenty-one years of age. He was married but living .apart from his wife. The members of his household, besides himself, were his mother, Mrs. Francoise Bullock, and his daughter, Mary. The servants of the household were two colored maids. Bullock own'ed a car which a chauffeur operated.

The complaining witness was a resident of Philadelphia. Her age was eighteen years. Her grandmother had been a companion of Mrs. Francoise Bullock. The father of the complaining witness had died some years before. Her mother had remarried. Miss Mishler had been educated at the public schools in the city of Philadelphia and at a Catholic school. After the completion of her education she sought employment. She had tried several kinds of work. Just prior to the happening of the occurrence in the present case she had been working for the Bell Telephone Company in Philadelphia. She had become ill and had been advised by her physician to cease work temporarily. It was suggested that she might pay a visit to the Bullocks at Wildwood. She wrote to Mrs. Francoise Bullock. Miss Mary Bullock replied to her letter and invited her to visit them at Wildwood. On Sunday, February 19th, 1923, she left Philadelphia on an afternoon' train for Wildwood. She arrived in Wildwood after it was dark. She was met at the station. She occupied the same room with Mary Bullock. This room communicated with the room of Mr. Bullock. Upon her arrival she states she was cautioned by Mary Bullock not to speak to her father about a Miss Jones whom she had met some years before at the Bullock home.

On Sunday evening there was no unusual occurrence in the household. The two girls slept together. During the day on Monday nothing out of the ordinary routine of the daily life happened. Eleanor Mishler testified that Mary Bullock did not sleep with her on Monday night. She said Mary Bullock wore on that night an undershirt of her fathers and was in his room. Miss Bullock said her night dresses were being laundered. On Tuesday evening Mr. Bullock, Mary Bullock and Eleanor Mishler left the Bullock residence with the intention of seeing a moving picture. Upon arrival at the theatre the plan was changed and they did not enter the theatre. Magazines were purchased. All returned to the Bullock home. During the evening Bullock had an outburst of temper upon learning that his daughter intended to go away for a visit. During the evening he told his daughter to get some pictures to show Miss Mishler. The pictures were shown her. They were pictures of nude women. According to the testimony of Eleanor Mishler, Mary Bullock laughted at the pictures and thought them grand. Eleanor Mishler on that evening occupied the bed with Mary Bullock in her room. She fell asleep. She was aroused by Seeing Mr. Bullock on the side of the bed with Mary. She tried to get out of the bed but was pushed back and held by Mary Bullock until ravished by Mr. Bullock. She fainted and came to consciousness at daylight. She heard Bullock tell his daughter to muss up the bed in his room. Eleanor Mishler dressed. She could not eat. She left the Bullock house that afternoon. Upon arriving at her home in Philadelphia she went to her room. She stated to her mother that she had a headache. She did not come to the table to eat. Her mother noticed that there was something wrong about her but could not elicit from her any information. She did not go out. She remained upon her bed. On Friday a married sister elicited from her what had transpired at Wild-, wood. On Saturday she was taken to the office of a physician who examined her sexual organs. They were red and inflamed. The hymen was ruptured. Their appearance indicated that a few days before force had been applied thereto. Another physician made an examination which confirmed the examination of the first physician. This medical testimony was offered at the trial.

The defense was a complete denial of everything testified to by the complaining witness.

We will first consider the legal points raised by the plaintiff in error.

The first point is that the verdict was illogical, inconsistent and unintelligible. This criticism is made because of the fact that Bullock was found guilty and his daughter, Mary Bullock, was acquitted. The verdict does appear to be illogical as Eleanor Mishler testified that Mary Bullock physically aided and abetted her father in the commission of the crime. It does not follow, however, that if the verdict is illogical it is erroneous. We see no legal error in the jury having returned a verdict of guilty as to Bullock and not guilty as to Mary Bullock. It may be that the jury thought that Mary Bullock was acting under coercion of her father. It is unnecessary, however, to speculate upon the reasons which led the jury to the result which it found. It is sufficient to say that the verdict may be illogical and inconsistent, yet not erroneous. The plaintiff in error suffered no harm by reason of the acquittal of Ms daughter.

The second point argued by the plaintiff in error is that the trial court erred when it charged the jury in the following language: “Now, so far as the evidence by way of defense is concerned, it rests primarily upon a general denial.” The contention is that, not only did the defense rest upon a general denial, but on affirmative testimony to show that the state’s ease was untrue. It will be observed that the trial judge did not say in this portion of the charge under consideration that the sole defense was a general denial. The court said: “It rests primarily upon a general denial.” This was true. It did rest primarily upon a general denial. The trial court left the question of the determination of the facts to the jury. The portion of the charge criticised amounts to merely a comment upon the testimony. Even if the comment was erroneous, which it is not, it would not, under the circumstances, constitute reversible error. State v. Hummer, 73 N. J. L. 714.

The third point argued by the plaintiff in error deals with the allowance of questions asked of Mary Bullock and the plaintiff in error upon their respective cross-examinations. These question related to Miss Jones, who had been a member of the Bullock household some years prior to the visit of Eleanor Mishler, in February, 1923. There were three specific questions asked Mary Bullock on cross-examination and three specific rulings made by the trial court. The specification of causes and reasons for reversal do not sufficiently specify the exceptions to the rulings. • The specification is general and in the following language: “Because the trial court, over objection, permitted the witness Mary Bullock to be cross-examined concerning a person by the name of Miss Jones, who was unconnected with the alleged crime and was not in the Bullock household at the time of the commission of the alleged crime.” The insufficiency of this specification is a sufficient reason for refusing to pass upon the question presented. We, however, feel that the questions asked were properly allowed. According to the testimony of Eleanor Mishler, she had, upon her arrival, been requested by Mary Bullock not to say anything to her father about Miss Jones. This, we think, afforded the state the right to cross-examine Mary Bullock regarding Miss Jones to the extent to which the trial court permitted the questions. The specification relating to the allowance of the question asked Mr. Bullock on the same subject is for the same reason insufficient.

The plaintiff in error further contends that counsel for the state made improper statements in offering evidence and in interrogating witnesses. An examination of the specification. of the causes and reasons for reversal discloses that not one of the alleged unfair statements of counsellor the state is set out as. a ground for reversal. We, therefore, cannot .consider the contention made in this behalf for the plaintiff in error.

. The only remaining question to be considered is as to whether or not the verdict is against the weight of the evidence. An appellate court will not set aside a verdict as against the weight of the evidence, except in those cases .where it is clear that the verdict is the result of mistake, passion, prejudice or partiality. State v. Karpowitz, 98 N. J. L. 546.

We have examined the voluminous record in this case with unusual care. While it is true that the testimony of Eleanor Mishler is. flatly contradicted in every particular by Bullock and his daughter; that the other members of the household testified that on the morning after the alleged assault the demeanor of Miss Mishler was the same as during the prior days of her visit, yet we feel that the medical testimony clearly establishes that the complaining witness was ravished; that the act was done during the time she was an occupant of the Bullock household; that her conduct upon reaching her home, as shown by her distraught condition, her unwillingness to talk,, her statements to her sister, her testimony at the trial, which related many circumstances which would have been difficult for so young a person to relate if they had not happened, all corroborate her version of what occurred upon her visit. Her testimony has the ring of truth. We have reached the conclusion that the verdict is not against the weight of the evidence.

The judgment of conviction is accordingly affirmed.


text:
    LESTER H. STRYKER, ADMINISTRATOR, ETC., v. PENNSYLVANIA RAILROAD COMPANY.
    Decided February 24, 1926.
    Negligence—Accident While Crossing Railroad Tracks—Duty of Traveler to Wait Until Any Temporary Obstruction of His View of Tracks Has Been Removed—Failure to do so is Contributory Negligence.
    On defendant’s rule to show cause.
    Before Gummere, Cheep Justice, and Justices Kalisch and Campbell.
    For the rule, John S. Applegate & Son.

      Contra, Reilly, Quinn & Parsons.

   Per Curiam.

This was a suit brought under the Death act. The plaintiff’s intestate was killed while driving his automobile across the tracks of the railroad company at Sea Girt in the forenoon of October 24th, 1924, while on his way to the beach.

The trial resulted in a verdict in favor of the plaintiff, and the defendant on this rule attacks that verdict, principally upon the ground that the finding of the jury that plaintiff’s decedent was not guilty of contributory negligence was contrary to the clear preponderance of the evidence. This contention seems to us to be well founded. The undisputed testimony is that, as he reached the crossing, he stopped his automobile at a point about thirty-five feet from the tracks while a southbound train was passing; that when this train cleared the crossing he started on immediately, and, as he was passing over the tracks, was struck by a northbound train, a view of which was temporarily obstructed by the train which had already passed. In the case of Central Railroad Co. v. Smalley, 61 N. J. L. 277, the Court of Errors and Appeals, in dealing with a situation almost identical with that presented by the present ease, declared that “the duty of a person who is about to cross a railroad track is to be prudent—to look and to listen and to do the things that will make looking and listening reasonably effective; if his vision is limited by transient obstructions or disturbances, he should wait until it has again become efficient to warn him of- peril. To go on a railroad crossing in the way of a train, which can be. neither seen nor heard, but which would be either visible or audible except for some temporary hindrance to sight or hearing, is to be negligent.” This principle was reiterated by that court in the «later case of Swanson, Administratrix, v. Central Railroad Co., 63 N. J. L. 605, the court stating that “it is the duty of the traveler upon a highway before crossing a railroad to look up and down the tracks, and also listen for approaching train, is temporarily diminished or destroyed by obstructions or disturbances which are transient in their nature, reasonable prudence required him to wait until such obstructions or disturbances have disappeared and his senses have again become efficient to warn him of danger before attempting the crossing.” The cases of West Jersey Railroad Co. v. Ewan, 55 Id. 574, and Pennsylvania Railroad Co. v. Pfuelb, 60 Id. 278, are to the same effect.

The finding of the jury on the question of contributory negligence in the case now under consideration' cannot be justified without entirely disregarding the legal principle laid down in the cases referred to.

The rule to show cause will be made absolute.


author: Pee Curiam.

text:
    WILLIAM T. READ, STATE TREASURER OF THE STATE OF NEW JERSEY, RELATOR, v. THE BOARD OF COMMISSIONERS OF THE CITY OF NEWARK, AND R. W. BOOTH, TREASURER OF THE COUNTY OF ESSEX, IN THE STATE OF NEW JERSEY, RESPONDENTS.
    Argued November 11, 1925
    Decided March 1, 1926.
    Taxes and Assessments—State Road Tax and State Institutional Tax Shall be Paid to the State, an Amount Determined by Applying the Statutory Rate to the Valuation of Personal Property of Public Utilities in Addition to the Ratables Used for Striking the Local Rate on “Net Valuation Taxable.”
    On rule to show cause why mcmdamus should not issue.
    Before Justices Trenchard, Katzenbach and Lloyd.
    Por the relator, Edward L. Kaizenbach, attorney-general, and Francis H. McG-ee.

    Por the respondent Bichard W. Booth, county treasurer of the county of Essex, Arthur T. Vanderbilt.

    Por the respondent the board of commissioners of the city of Newark, Jerome T. Congleton.

   Pee Curiam.

Chapter 262 of Pamph. L. 1922, p. 634, and chapter 172 of Pamph. L. 1923, p. 458, place the duty upon the county treasurer to pay over to the state treasurer the moneys collected from the taxing districts when and as received from the collectors or other officers having the custody of collected taxes in the taxing districts of the county.

The state treasurer claims that there is a balance due from the taxing district of the city of Newark, as its share of the road tax for the year 1924, the sum of $14,459.30, and as its share of the institutional tax for that year the sum of $7,239.65.

The road tax is a one-mill tax, and the institutional tax is a half-mill. tax. .

Application is made for a peremptory writ of mcmdamus directed to the governing body of the city of Newark and the county treasurer, commanding the board of commissioners of the city of Newark to cause to be paid, to the county treasurer the balance due and unpaid of each tax, with interest, and commanding the county treasurer to pay the balances due, with interest, as received by him within ten days thereafter, to the state treasurer.

The facts are not in .dispute, but the legal duty is in question.

The Eoad act of 1922, chapter 262, by section 17A, provides that beginning with the year 1923 there shall be assessed each year and levied and collected, in each of the municipalities, the counties of this state, a tax sufficient to meet the interest on all outstanding bonds, proposed to be issued in the calendar year in which the tax is to be raised. The levy and assessment is required to be made upon all the real and personal property in every such municipality upon' which municipal taxes are, or shall be, assessed, levied and collected, in the same manner and at the same time as other taxes upon real and personal property are assessed, levied and collected, and requires the governing body of each municipality to cause the taxes to be paid to the county treasurer as received by him. Subdivision (b) of the section provides that when the rate is by millage on the dollar of valuation, it shall apply to the valuation basis of the current year, and requires the comptroller of the treasury to certify the millage so calculated to the county treasurer of each county and the county board of taxation. The county board is then required to include the millage on the dollar of valuation so certified, in the current tax levy of the several taxing districts of the county, in proportion to the ratables as ascertained for the current year. The Institutional Tax act of 1923 authorizes a tax to be levied, assessed and collected, for the year 1924, at the rate of one-half of a mill on each dollar of the value of all the real and personal property in every municipality, upon which municipal taxes are, or shall be, levied, assessed and collected, in the same manner and at the same time as other taxes upon real and personal property are now levied, assessed and collected. When collected the 'taxes are to be paid over into the state treasury, as above stated. The road tax and the institutional tax are in similar terms in so far as concerns the matter of controversy in this application.

The question involved is presented in entire good faith by all parties concerned. It is not without its difficulties. The question is whether or not the valuation of the personal property of public utility corporations, using or occupying public streets, shall he included in the valuation to which the rate of one mill in the road tax and the half-mill in the institutional tax was applied.

Chapter 25 of the. laws of 1919 (at p. 49) provided for a franchise tax additional to that already being assessed annually on the gross receipts of public utility corporations as enumerated therein, using or occupying public streets, highways, roads or other public places, in lien of taxation of the personal property in the municipalities which had theretofore been taxed in the respective municipalities. .Such additional franchise tax or license fee was in lieu of all taxes for state, county, school and local purposes on such property. Section 2 required, however, that the same valuations and returns should he made by the assessor in each taxing distract, and that the franchise taxes should he apportioned in the same manner and on the same basis as though the statute had not been passed, and section 3 required the assessing body in each taxing district to annually ascertain the value of all the personal property of such corporations and to certify them in the samer manner and at the same time as otherwise required, for the purpose of the apportionment of such franchise taxes, and further provided that the valuation of such personal property of such corporations, taxed on gross receipts, should, nevertheless, be included in and considered part of the total amount of valuations of such respective municipalities for all other purposes except the computation of the respective municipal tax rates.

At the time of the enactment of this additional franchise tax on gross receipts of public utility corporations, in .lieu of taxes assessed on the personal property of such corporations, there were in force- a Road Tax act and an Interstate Bridge and Tunnel Tax act, respectively designated as chapter 16 of the laws of 1917 and chapter 51 of the laws of 1918, and section 4 of the Additional Franchise Tax act provided that the tax of one mill imposed in each case, under the provisions of said Road act and Bridge and Tunnel act should be paid in each taxing district by the officer having custody of the funds to the county collector on each dollar of the value of such property of the corporations so exempted, the same as if the said act had not been passed.

We think that the legislature, in enacting the additional Franchise Tax act (Pamph. L. 1919, ch. 35), intended, in imposing the additional franchise tax, that state, county and school taxes should be imposed in the same manner, and upon the same valuations, as had been done prior to the act of 1919. The act relieved such personal property from state, county, school and local taxation, but provides, nevertheless, that the valuation of such property should be included in and considered part of the total valuations of the respective municipalities for all other purposes except of the computation of the municipal tax rate, and that intention is emphasized by the fact that the legislature specifically provided that under the Road act of 1917 and the Bridge and Tunnel act of 1918, under which taxes were then being assessed for road, bridge and tunnel purposes, should be imposed by the application of the millage to valuations, the same as if the act of 1919 had not been passed. Chapter 363 of the laws of 1933 is a continuation of road taxation as previously imposed under chapter 16 of the laws of 1917. The 1917 act provided that taxes should be assessed annually for a period of five years from the date of its passage, namely, during the years 1918 to and including 1922; taxation for the same purpose being continued under the act of 1922, commencing with the year 1923. The earlier act of 1917 provided that there should be assessed, levied anad collected in each of the municipalities of the counties of this state a tax of one mill on each dollar of the value of all the real and personal property in every such municipality, upon which municipal taxes are, or' shall be, assessed levied and collected and required them to be assessed, levied and collected in the same manner and at the same time as other taxes upon real and personal property were then assessed, levied and collected. The officer having the custody of the collected taxes was required to pay the same out of the first moneys collected to the county collector, and the county collector was required to pay the same to the state treasurer. The Road act of 1917 was construed in Gillen v. Essex County Board of Taxation, 91 N. J. L. 76, and the tax was said to be clearly a state tax, levied upon property classified “as property upon which municipal taxes are assessed, levied and collected.” In West Shore Railroad Co. v. State Board of Taxes, 92 Id. 332; affirmed, Id. 648, it was said that the act provided for the levying and collecting in all the municipalities of the state a tax of one mill on the dollar of all real and personal property, which, when collected, in due course was to be paid to the state treasurer, to be placed by him in the state road fund. The insistence of the prosecutors (the railroads) was that, in so far as the returns by the municipalities to the state treasurer involved an increasing of the state tax imposed upon them, they were illegal and void, the contention being based upon the various railroad enactments, which subjected them to a state tax in lieu of the local tax imposed by the various taxing districts in which such properties are located, and that while the additional tax for roads was to be collected from all the taxable real and personal property in the state, it could not legally be exacted from them because of the particular status the railroads occupied under the legislation particularly affecting them and referred to in the opinion. The court further said that the issue was whether the state board, when it received its total of local municipal aggregates for the purpose of computing of the state tax rate, could ignore the additional one mill added to the local levy and make up the state tax rate minus that added 'factor—that is, did the legislature, by the act of 1917, evince an intent to impose the additional one mill of taxation upon the segregated railroad property retained by the state for the purposes of taxation, as well as upon the general ratables of the state assessed locally, and pointed out that a negative to. this inquiry would result in attributing to .the legislative body an intent to impose a state tax for a state purpose by a process of elimination which in its application would produce neither uniformity nor equality, and thus run counter to the constitutional inhibition. The court further said that the act under consideration must'be construed, as to its legislative intent in the light of all kindred legislation, adding that “the rule of construction is fundamental that when divers laws are made relating to one subject-matter, the whole must be considered as constituting one system, and mutually connected one with another,” and that the act of 1917 was mandatory and required the addition of the road tax to the local rate, thus necessarily increasing the average rate of taxation when the local returns-are made the basis of the computation of the state board, in accordance with the requirements of the supplement of 1906, ■and added: “It is to be presumed that the legislature, conscious of the legal effect and operation of existing laws, passed the act sub judice, for the purpose of effectuating the end. .that its language [taken in connection with legislation, which had established a familiar and well-understood policy of dealing with the subject of taxation, both state and municipal] must necessarily effectuate, unless the present equilibrium established as a state policy of equality, in the distribution of the public burdens, is to be seriously impaired and disturbed. Consonant with this view the rule of construction has been held to be that the mind of the legislature is presumed' to be consistent, and in case of a doubtful or ambiguous expression of its will, such a construction should be adopted as will make all the provisions of the statute consistent with each other, and with the pre-existing body of the law.”

The Bridge and Tunnel act (Pamph. L. 1918, ch. 51) was of similar purport to the act of 1911 and the present act of 1922, imposing taxes for road purposes, and the institution tax of 1923 is of similar purport to the three acts mentioned. The present Boad act and the Institutional act were both enacted subsequent to the Eranchise Tax act of 1919. Prior to the enactment of the Eranchise Tax act of 1919, the property assessed for municipal purposes included the personal property of corporations using the public streets and places, and, therefore, the valuation taken to apply the one mill tax under the earlier Boad act and the Bridge and Tunnel act included the value of such personal property in each taxing district—that is, the value of the property taxed for municipal purposes included the value of such personal property, and the one mill rate was applied to that sum after the additions and deductions required by sections 510 and 511 of the Tax Revision of 1918 had been made. Pamph. L. 1918, p. 869, ch. 236. Since the passage of the Eranchise Tax act of 1919, the value used for the striking of the municipal tax rate for the purpose of raising money for local purposes does not contain the value of the personal property of such corporations, but is listed separately, as appears by the table of ratables for the year 1924.

We think that the rate of one mill and one-half mill in the assessments for the year 1924, for road and institution purposes, should be applied to the same 'valuations as was done under the earlier acts for roads and bridges and tunnel purposes, and that while the valuations of the personal property of public utility corporations is not to be used for striking the municipal tax rate, it is to be used for all other pur-' poses except for municipal purposes in accordance with the express terms of the act of 1919, that “such valuations of said property in the respective municipalities shall, notwithstanding the exemption of such property from taxation by reason of this act, nevertheless be included in and considered a part of the total amount of valuations of such respective municipalities for all other purposes, except the computation of the municipal tax rates.” The legislature was conscious of the legal effect and operation of existing laws, and when it used in the Eoad act of 1922 and the Institution act of 1923, the same words as in the earlier acts, it was no doubt the legislative intent that the same valuation should be used as a basis for these state taxes as was used under the Eoad act of 1917 and the Tunnel act of 1918, because these several laws must be considered as constituting one system and mutually connected with one another. While the municipalities do not assess the personal property of public utility corporations using public places, by taking the value thereof to strike the municipal tax rates, they do receive, in lieu thereof, the sums raised by way of additional franchise taxes, which are not property taxes but license taxes. Salem, &c., Co. v. State Board, &c., 97 N. J. L. 386. The road tax and the institution tax were intended to be assessed as provided in the Franchise Tax act of 1919, the same as though that act had not been passed. The state treasurer is made the collecting officer for the respective state funds raised by these taxes, and the county treasurer is the ministerial officer designated by these statutes to collect the taxes from the taxing districts and pay the moneys as received over to the state treasurer. And the road tax should have been paid by applying the mill rate and the institutional tax by applying the half-mill rate to the valuation of the personal property of public utilities in addition to the ratables used for striking the local rate on ‘Net Valuation Taxable/ ”

In reaching this conclusion we have not overlooked the contention of the respondents that chapter 25 of Pamph. L. 1919 is “not a general law within the meaning of article 4, section 7, paragraph 12 of the constitution [requiring that] ‘property shall be assessed for taxes under general laws and by uniform rules, according to its true value/ ” The contention has heretofore been decided to be without merit. Salem, &c., Co. v. State Board, &c., supra. See, also, Johnson v. Asbury, 58 N. J. L. 604.

Our conclusion is that the board of commissioners of the city of Newark should be directed by peremptory writ of mandamus to pay to the county treasurer the balance claimed for roads amounting to $14,459.30, and for institutions $7,229.65, with interest for the amount for roads from December 20th, 1924, to date of payment, and in the case of institutions with interest on $3,614.82 from June 25th, 1924, to date of payment, and on $3,614.83 from December 25th, 1924, at six per centum per annum, and the county treasurer directed to pay such sums to the state treasurer within ten days thereafter. Such writ will be awarded.


text:
    FRANCES W. HOTCHKISS ET UX. v. DAVID S. WALTER ET AL.
    Decided February 24, 1926.
    Negligence—Motor Truck Injury to Pedestrian-Sufficient Evidence to Support the Verdict—Court’s Refusal to Charge Request of Defendant, Sustained—Verdict Not Excessive.
    On defendants’ rule to show cause.
    Before Gummere, Chief Justice, and Justices Kalisch and Campbell.
    For the rule, Kalisch & Kalisch.

      Contra, Blair Beiley.

   Pee Curiam.

This was an action for personal injuries received by Mrs. Hotchkiss while crossing Hawthorne Place, at the comer of Woodland avenue, in the city of Summit, about half-past five in the afternoon of January 16th, 1924. Her claim was that as she was crossing Hawthorne Place, was run down and injured by an automobile truck belonging to the defendants and carelessly operated by a driver named Moore. The trial resulted in a verdict in favor of Mrs. Hotchkiss and her husband, the .wife being awarded $7,500 and the husband $2,500.

The first ground upon which we are asked to make this rule absolute is that there was no sufficient proof justifying the conclusion that the defendants’ driver was guilty of negligence producing the accident. Our examination of the testimony sent up with the rule leads us to the conclusion that this ground is not supported by the fact; that there was ample proof to support the finding of the jury that the accident resulted from the negligent driving of the truck by Moore.

It is next contended that the court erred in refusing to charge the following request submitted on behalf of the defendants : “In an action for negligence, the right of the defendant to have the plaintiff bear the burden of proving the charge laid in the complaint is a substantial one, which burden may be borne'either by proof of some negligent act or by proof of circumstances from which the defendant’s want of care is a legitimate inference. Where neither sort of proof is forthcoming, the jury should return a verdict for the defendant.” Taking' the whole of this request into consideration, we deem the legal proposition contained in it to be unsound, and, if it be so in any respect, the court was justified in refusing to charge it. Although it is true that the burden of proving the charge made in the complaint rests upon the plaintiffs, it does not follow as a necessary result that a failure on his or her part to produce such proof will justify a jury in returning a verdict for the defendants; for, although the plaintiffs’ proofs may not show any negligence on the part of the defendants or their agent, yet, if on the defendants’ own case facts are introduced which demonstrate the existence of such carelessness, the plaintiffs are entitled to recover, notwithstanding- the failure of proof in their opening case.

It is further submitted on the part of the defendants that there was error in the refusal by the trial court to charge certain other requests submitted on their behalf. Our examination of the charge satisfies us that, so far as the legal propositions contained in these requests were sound, they were charged in effect; and this is all that the trial court was required to do.

Lastly, it is argued that the verdict in favor of Mrs. Hotchkiss is excessive. Our examination of the testimony with relation to the character of her injuries and the effect produced by them upon her satisfies us that it justifies the award made to her by the jury.

The rule to show cause will be discharged.


text:
    JAMES W. ABEL, PLAINTIFF, v. ZEEK BAKING COMPANY, DEFENDANT.
    Decided February 26, 1926.
    Negligence—Motor Vehicle Collision—Plaintiff’s Car was Slowly Entering Main Road From a Private Road—Defendant’s Car Moving Rapidly on Main Road—Contributory Negligence of Plaintiff Not Proven—Verdict Not Excessive.
    On defendant’s rule to show cause.
    Before Gummere, Chief Justice, and Justices Kalisch and Campbell.
    Eor the rule, Joseph C. Paul and Jacob Schneider.

    Contra, William, C. Gebhardt & Son.

   Per Curiam.

The plaintiff obtained a verdict against the defendant, in the Hunterdon Circuit, for the sum of $6,225 for personal injuries sustained by tbe former as a result of the alleged negligence of the latter’s servant in so operating and driving defendant’s truck upon a public highway,'as to collide with the plaintiff’s automobile.

The accident occurred at an intersection of four roads, one leading from Whitehouse to Oldwick, on which the truck was traveling in a southerly direction, and the other being a private road going from the plaintiff’s quarry to. Laming-ton and Ear Hills, on which the plaintiff was riding in his Eord, going in an easterly direction. The road from the intersection to the quarry was narrow, being about eleven feet in width. There was a large triangular space on the north, east and south sides of the intersection of one hundred and seventy-eight feet by eighty-four feet. The one hundred and seventy-eight feet being measured along the Whitehouse-Oldwick road. The plaintiff says he was driving his car at a very low rate of speed, and was scarcely on the Whitehouse-Oldwick road at the intersection when his automobile was hit' by the truck which was going toward Whitehouse and traveling at a high rate of speed. There were no other vehicles on the road at that time at this point. There was a motion for nonsuit, which, we think, was properly refused. The plaintiff testified: “I was coming down the road with my wife and children. We expected to go to Whitehouse to the bank, and we were early, and, consequently, driving very slow, and, as I came down, it is about seventy-five feet from the main road, that is the Whitehouse-Oldwiek road, I looked to the left, and my view was clear for probably five hundred feet, and then after that the bushes obscured the vision, and I put my car in low gear, because we had lots of time and I was driving very slow when I got to within twenty or thirty feet of the main road, I blew my horn and leaned forward to see if anybody was coming. After that it was an entire blank.” The plaintiff’s wife testified that when they were possibly seventy-five feet from the crossing of the road the vision of the main road was obstructed for about one hundred and fifty feet by bushes which were about nine feet high, and that at that time .the car in which she and her husband were was going very slow, not over four miles an hour. She'further testified: “After we couldn’t see the road any more, the main road, as we came out just to the edge of the road, we were hit with a terrible impact on our left side, a little toward the front of the car, and forced along the road just over the center, and the children screamed, and I—in front of us a truck whizzed and lurched violently and passed us and went down the road for quite some distance;” that she did not hear any horn sounded by the truck, though her huband sounded his horn when he was about twenty feet from the main road; that the car in which she was riding was shoved a distance of about twenty or thirty feet. Even upon the theory that the intersecting road was a private road out of which the plaintiff’s car emerged, and that the view from it of the main road was obstructed by bushes in the direction from which the defendant’s automobile was coming, these circumstances could not properly put the plaintiff or the” user of the road beyond the pale of protection against the tort-feasor.

In the exercise of ordinary care, under the common law, the driver or operator of a vehicle driving along a public road cannot properly shut his eyes and ears to the conditions confronting him and thus shield himself from liability, in case of a collision, by ignoring the existence of intersecting roads, irrespective of the fact whether they be public or private, by failing to give warning of his approach or by failing to give heed to warnings of approaching vehicles likely to come out of such intersecting roads, and, in view of the further fact that there was testimony that the defendant’s car was propelled at a high rate of speed, that no warning of its approach was given, that the plaintiff blew his horn when within a few feet from the intersection of the roads and was driving at four miles an hour, and that his view of the approach of the defendant’s car was obscured until his, the plaintiff’s car, reached the edge of the intersecting road, at which time he was placed in peril and his ear was struck by the defendant’s truck, which was being driven close to the edge of the road out of which the plaintiff's car emerged, and whereas there was an abundance of unobstructed space for the truck driver to have operated his car in, and thus have avoided a collision, hence in this posture of the case a factual question was presented which was for the decision of the jury and not for the court.

After the defendant's proof was all in, counsel, in his behalf, asked the court to direct a verdict in favor of the defendant upon the ground that the plaintiff was guilty of negligence contributing to his injury, and, therefore, debarred of a recovery. The 'argument to support this request is founded mainly on the fact that it appearing that the view of the plaintiff was obstructed by bushes in the directibn from which the defendant's truck was coming until he reached the intersecting point of the road, and even that then, before the plaintiff could make any effectual observation in the direction from which the truck was coming, “the entire radiator portion in front of the seat would be on the road,” therefore it became his duty to have stopped his car before it reached the main highway and make his observation the best he could. According to the testimony, in order for the plaintiff to obtain view, it would require him to leave his- car and go on foot to the edge of the private road where it intersected with the main highway. Similar argument on behalf of the defendant was advanced in Wilson v. Kuhn, decided at the present term of this court, and not yet reported, the basis facts being somewhat similar to those under consideration, and-in which ease it appeared that the plaintiff was emerging upon the main highway out of a private lane or driveway, his view of the road, to some extent, was obstructed by a hedge, and this court said: “But it is fairly clear that it would not be said, as a court question, that the plaintiff was under any obligation to stop his ear before coming out on the road, get out of it, and go outside the hedge on foot and look up and down the road before proceeding.” The motion for a direction of a verdict for the defendant was properly denied.

Nor do we think the verdict is clearly excessive. The surgeons and physicians disagreed as to the character and seriousness oí the injuries sustained by the plaintiff. Under the testimony the jury was warranted in finding that the plaintiff’s skull and two ribs were fractured; that he was unconscious for some time after the accident; that he had several cuts on his upper lip, extending from the edge up to the nostrils, cuts upon his chin and a cut near his eyebrow, and that ho suffered from shock, and that he had become emaciated since the accident and is still suffering from the effects of his injuries, and that some of them are permanent, and that his capacity to attend to his business has become much impaired by his injuries.

The fourth reason presented for a new trial is that the court should have declared a mistrial. This ground is without merit. The defendant’s counsel, on cross-examination of the plaintiff, asked him whether or not he was treated by Dr. Apgar, and the answer was “No.” He wes then asked, “After the accident?” the witness answered, “I had first aid with Dr. Apgar.” “Q. And then he treated you after you came back from the hospital?” “No, sir.” “Q. Sure of that?” “A. He was in to see me once or twice; he said the insurance company sent him into see me, but he gave me no treatment.” There was no motion made to strike out the answer as not responsive. The motion made was on,e addressed to the discretion of the court, namely, to declare a mistrial, which motion was refused, and we are unable to perceive that the trial judge abused sound discretion by his refusal to grant the defendant’s counsel’s request.

We have examined and considered the reasons presented for a new trial under points five and six of the defendant’s brief and find them to be without merit.

Rule to show cause is discharged, with costs.