text:
    JOSEPH SARDO INFIRRI, PLAINTIFF, v. CHARLES STASIAK, DEFENDANT.
    Decided November 13, 1926.
    Negligence—Injury to Passenger While in Act of Boarding Auto Bus—One Foot was Amputated—Jury’s Award of $500, Apparently, Grossly Inadequate—New Trial Asked as to Damages Only, but New Trial Ordered as to All Issues.
    On plaintiff’s rule to show cause.
    ' Before Gummere, Chief Justice, and Justices Kalisch and Campbell.
    For the rule, Francis A. Castellane, Jr. (Joseph H. Gaudielle, of counsel).

      Contra, Alexander M. MacLeod (George L. Record, of counsel).
   Per Curiam.

There was a preliminary motion made on behalf of the defendant to dismiss the rule to show cause, which motion is denied. Now, as to the merits on which the rule to show cause is based.

The plaintiff brought his action against the defendant to recover compensation for injuries sustained by him through the alleged negligence of the defendant in the operation of an auto bus for the carrying of passengers for hire, while he, the plaintiff, was in the act of boarding the vehicle, as a passenger. The cause was tried in the Bergen Circuit, and resulted in a verdict for the plaintiff for $500. The nature of the injury sustained by the plaintiff was the loss of his left foot. One of the wheels of the bus ran over it and crushed it to such an extent that an amputation of the foot was a vital necessity. The amputation was • performed in Bellevue Hospital, in the city “of New York. The plaintiff entered the hospital on the day of the injury, May 8th, 1923, and left that institution on June 22d, 1923, although he was not completely healed at that time. He was a presser by trade, earning $70 a week at the time of his injury. Since then, according to his testimony, he has been without work for two years and four months. He, furthermore, testified that he was unable to continue in the vocation of a presser by reason of the loss of his foot. Even without taking into consideration the loss of present and prospective earnings, by reason of his altered physical condition, the award of $500 for the loss of his foot and the resulting pain and suffering endured by him is so ridiculously inadequate that it shocks the sense of justice, and stamps the verdict as the result of either mistake, partiality, passion or prejudice, on part of the jury.

We are asked to grant a new trial as to damages only, but we think that there should be a new trial on all the issues involved in the cause, and, therefore, the rule will be made absolute and a new trial ordered on all the issues, costs to abide the event.


source: Caselaw Access Project

author: Pee Curiam.

license: Public Domain

text:
    MILDRED LAWRENCE, PLAINTIFF, v. THE DELAWARE, LACKAWANNA AND WESTERN RAILROAD COMPANY, DEFENDANT.
    Submitted May 15. 1926
    Decided November 13, 1926.
    Negligence—Injury to Railroad Passenger While Leaving Company’s Property After Alighting From Train—Plaintiff Pursued a Path Over Company’s Property Not Intended For Patrons—Held, That Under Normal Conditions the Existence of a Worn Path Across Tracks to Station Cannot be Relied on as an Invitation to Use That Path so Long as There Is a Safe Pathway Provided For Such Access, Though the Pathway Provided Is Less Convenient—Verdict Against Charge of Court and Weight of Evidence.

      On defendant’s rule to show cause why plaintiff’s verdict should not be set aside.
    Before Gummebe, Chief Justice, and Justices Tbenchaed and Mibtturst.
    Eor the rule, Frederic G. Scott.

      Contra, Richard J. Mackey.

   Pee Curiam.

The defendant operated a railroad. One of the branches of this railroad extended from Hoboken through the Oranges, Newark, Morristown, and SO' forth, to Denville. The plaintiff lived in Denville and became a passenger on a train operated by this defendant along this particular branch of its railroad. She left Hoboken about eight o’clock and arrived at Denville at nine forty-five, on the evening of September 24th, 1924. As we read the evidence as to the plaintiff’s subsequent movements, it is correctly recited in the judge’s charge thus:

“On the night in question she alighted from the train, walked up this platform and then turned to her right, went down the platform, went to the right of the signal post, went down a slight incline, and then walked between the freight tracks and the passenger tracks, and after she had walked a very short distance, she struck her foot against a signal box that was there and fell and was injured.”

She brought this suit against the railroad company, alleging negligence on the part of the railroad company.

The trial judge further said in his charge (and we think correctly) that “it is not disputed in this case, as I understand the evidence, but you are to be the sole judges of fact, that the railroad company did provide a way for the passengers to reach the public highway, but that way was not as convenient as taking a short cut. Mr. Beilly (who- was accompanying the plaintiff at the time), who was introduced by the plaintiff, says that many of the people from the northern part of Denville made a shorter cut than this lady took on the night in question, that instead of going between the tracks they cut across the track; that he had seen many people, during the time he had lived there, take the very same course that Miss Lawrence took on that night in question.”

Again, in reference to the evidence, the judge further said in his charge: “There is no evidence that the railroad company even attempted to stop people from walking along that track the way Miss Lawrence went, and there is no evidence that there was any sign there and neither is there any evidence that the railroad company ever did anything to make that a path for people to reach the station. It appears that the signal box extended out some distance between these tracks and it had been there as long as Mr. Reilly had lived there 'in the same position it was, and beyond that box to the signal box there was a switch apparatus which also extended out, and they had been there for a considerable length of time, just as long as Mr. Reilly had been there, and how much longer does not appear. Now, Miss Lawrence knew of all that condition of affairs. She walked there according to her own story almost every day during the time that she was down in Denville. She knew exactly the situation.” That, in substance, was a correct recital of the evidence so far as it is now material.

Continuing, the learned trial judge further charged more particularly with reference to the legal situation as follows: “Now, gentlemen, if you find in this case no evidence that the railroad company had ever done anything except to allow these people to pass over this pathway, Miss Lawrence was not in a position that she could hold this railroad liable as an invitee. She was simply either a trespasser or a licensee, and all the duty that the railroad company owed was to refrain from willful acts of injury, and, of course, there -was no willful act of injury on the part of the railroad company here.”

We think that the learned trial judge correctly stated the undisputed material facts to the jury.' He likewise correctly stated the rule of law. It is stated to the same effect in Corson v. Atlantic City Railroad Co., 83 N. J. L. 519, thus:

“Under normal conditions, the existence of a worn path across railroad .tracks to a station cannot be relied on as an invitation to use that path, so as to make the railroad company responsible for injuries due to mere negligence, so long as there is a safe pathway provided for such access, and the fact that the pathway provided is less convenient than the other will make no difference in the rule.”

We are therefore constrained to hold that the verdict was contrary to the charge of the court, and was certainly against the great weight of the evidence in regard to invitation.

The rule to show cause must be made absolute.


author: Per Curiam.

text:
    ANNIE BLUMKIN AND SAMUEL BLUMKIN, PLAINTIFFS, v. ABBAHAM SHYOWITZ AND MOLLIE SHYOWITZ, DEFENDANTS.
    Argued May 5, 1926
    Decided November 13, 1926.
    Negligence—Dangerous Condition of Stairs of Apartment-House —Tenant, While on Business to Floor Above the One She Occupied, was Injured as Result of Imperfect Condition of Stairway—Landlord Had Due Notice of Disrepair of the Stairs—Held, Verdict Not Excessive Nor Against Weight of Evidence, and Refusal to Nonsuit Properly Denied.
    On defendants’ rule to show cause why plaintiffs’ verdict should not be set aside.
    Before Gummere, Chief Justice, and Justices Trenchard and Minturn.
    Eor the rule, Jacob I. Jajfe and Weinberger & Weinberger.

      Contra, Feder & Rinzler and Ward & McGinniss.

   Per Curiam.

The defendants owned and controlled an apartment-house. The plaintiffs (husband and wife) were tenants on the first floor. On January 15th, 1923, the wife had occasion to go to the second floor at eight P. M. to visit another tenant on business. When she undertook to return to the first floor from the second floor, the hall of which was poorly lighted, she fell down the stairs and was injured.

The wife recovered a verdict of $1,500 and the husband $1,000, and the defendants obtained this rule to show cause why such verdicts should not be set aside.

The evidence on the part of the plaintiffs at the trial tended to show, and did show quite clearly, that the floor of the corridor on the second floor near the top of the stairs was defective in that the tile was broken, leaving' a considerable hole therein; that the metal strips on the nose of the top step, and some of the other steps, leading from the second floor to the first floor, were defective, loose and standing upright above the steps, and that the defendants had definite notice at least six weeks prior to the accident of this state of disrepair.

The evidence further tended to show that the woman-plaintiff, in trying to avoid the hole in the tile, tripped over the defective stripping on the nose of the stairs and was thus precipitated down the stairway, and thereby injured. It seems quite clear from the testimony that the hole existed, and that the defective stripping existed, and the testimony of the people who heard the scream of the woman-plaintiff and examined the conditions immediately afterward, was to the effect that the left slipper of the woman was caught in the defective stripping and remained there after her fall.

We think the motions'to nonsuit and to direct a verdict for the defendants were properly denied. The questions of negligence of the defendants, and of alleged contributory negligence of the wife, were proper jury questions, and we cannot say the verdict was against the. great weight of the evidence.

We do not think that the verdict was excessive; manifestly, it was not excessive so far as the verdict for $1,500 for the wife was concerned, and neither do we think it was excessive so far as the husband was concerned. He paid out up-. wards of $200 in cash for expenses, and lost the services of his wife and her companionship and society for a considerable time.

We have examined with care the other points made by the defendants. We find no error in the admission or rejection of evidence, nor in the charge of the court, nor in the refusal to charge as requested.

The rule to show cause will be discharged.


text:
    JACOB HEINOCHOWITZ, PLAINTIFF, v. GEORGE W. MACPEAK, DEFENDANT.
    Submitted May 15, 1926
    Decided November 13, 1926.
    Trespass—Astrays—Plaintiff, a Sheep Raiser, Allowed His Sheep to Trespass on Land of Defendant—Defendant Having Notified Plaintiff, Who Did Not Recover Them—Defendant Then Sold Them, as he Believed According to Law Relating to Astrays—Plaintiff Brought Suit and Defendant Counterclaimed For Damages—Verdict For Defendant—Held, That Court’s Charge was Proper and That the Jury Award was Justified.
    On plaintiff’s rale to show cause why defendant’s verdict should not be set aside.
    Before Gummere, Chief Justice, and Justices Trenchard and Minturn.
    For the rule, Milton M. Unger.

      Conti.%, King & Yogi (Elmer King and Robert H. Schenck, of counsel).
   Per Curiam.

The plaintiff and defendant owned farms abutting the state highway between Netcong and Hackettstown. Between the two was a small tract of land occupied by Thomas Carter.

The defendant, MacPeak, had been a farmer in that locality for some years and tilled seventy of his one hundred and twelve acres.. In 1921 the plaintiff bought his property, containing three hundred and forty-five acres, and planned to devote one hundred and seventy-five acres, divided in sections, to raising sheep. Early in the year 1921 he acquired eight hundred and sixteen sheep. In 1921 the sheep got out and wandered over the MacPeak and other adjoining farms." According to MacPeak, Heinochowitz’s sheep were on the MacPeak farm almost.continuously, and frequently MacPeak drove them to his barnyard and sent word for the plaintiff or his men to come and get them. On one occasion plaintiff’s representatives paid defendant $5 for driving them in.

In November, 1921, twenty-three sheep were found pasturing upon a field of the defendant in which rye was sowed, the crop to be harvested in 1922, the rye by November being about three or four inches high. These twenty-two sheep the defendant, with the help of his son, drove to his barnyard. He notified plaintiff that he had them, that he (plaintiff) could get them, but plaintiff failed to do so. Believing that he was following the provisions of the statute relating to astrays, defendant advertised them for sale. No bidders came to the sale, and defendant finally sold twenty sheep (three having died) to one Vleit for $30. Thereafter, the plaintiff instituted this suit to recover damages because of the alleged wrongful taking of his sheep, and the defendant filed a counter-claim for damages to his crops. At the trial the plaintiff was not ready to proceed when the case was called, and the defendant proceeded to put in his testimony on the counter-claim. After the defendant’s case on the counter-claim was in, the plaintiff put in his .case for the alleged wrongful taking of the sheep.

The jury returned, a verdict of $270 in favor of the defendant, and the plaintiff obtained this rule to show cause why that verdict should not be set aside.

The. defendant’s testimony that the sheep of the plaintiff trespassed upon his property on a number of occasions and destroyed numerous crops is abundantly corroborated by a number- of witnesses. The undisputed testimony -is that defendant took care of twenty-three of plaintiff’s sheep from November 19th, 1921, to February, 1922, which was fairly worth $100. There was $50 damage done to the rye, $250 to clover and alfalfa, $20 damage to another field of rye, making a total of $420. This total included nothing for defendant’s time in driving off the sheep or burying (lead ones found on his property.

The court' charged the jury that the plaintiff was entitled to the value of his sheep because the defendant had not strictly complied with the provisions of the statute relating to astrays, in making sale of them, and that they should determine the value of the sheep considering their condition and the testimony of both sides. Yleit, a dealer who bought the sheep for $30, said that was all he would give for them, was all they were worth to him, and said that such sheep at that time were worth in the market what he paid for them.

The plaintiff’s attitude and demeanor as a witness no doubt led the jury to view his testimony as unreliable to a certain extent, as we think properly. The excessive values he sought to put on the sheep in question, considering their condition, were at absolute variance with the testimony of Yleit and the defendant. And it is apparent from the jury’s verdict that they accepted the defendant’s testimony as true rather than that of the plaintiff.

We cannot say that the jury failed to follow the court’s charge in arriving at their verdict, which is substantially below the total of defendant’s damages less a reasonable allowance for the sheep sold. It seems reasonably evident that plaintiff’s sheep in various numbers roamed the countryside at will, with seemingly little attempt on • the part of the plaintiff or his employes to keep them at home and off the neighbors’ crops; that this condition continued throughout the summer of 1921 and into the fail, and that in the early winter numbers of them were foraging through the woods and over fields in search of food, and a number of them died for one cause and another.

The jury had the benefit of hearing the various witnesses testify in court and observing their demeanor on the stand. We think that the testimony amply justifies the verdict in' favor of the defendant, and the rule to show cause will be discharged.


text:
    ANDREW A. JACKSON, ADMINISTRATOR AD PROSEQUENDUM OF THE ESTATE OF ROBERT E. JACKSON, DECEASED, PLAINTIFF, v. DREAMLAND COASTER COMPANY, A CORPORATION, DEFENDANT.
    Submitted May 15, 1926
    Decided November 13, 1926.
    Negligence—Plaintiff’s Intestate Killed While a Passenger on , Defendant’s Amusement Device—The Device Known as a Roller Coaster Carried Its Passengers In Cars—Plaintiff’s Intestate Had Several Times Ridden Around Safely—On Fatal Trip, a Sudden Stopping and Starting of Car Threw Him Forward Out of Car—Held, That Evidence Showed That the Injury was the Result of Improper Construction, Also, That There Were Not Proper Safeguards.
    On defendant’s rule to show cause why plaintiff’s verdict should not be set aside.
    Before Gummere, Chief Justice, and Justices Tren chard and Minturn.
    For the rule, John W. McGeehan, Jr.

      Oontra, Thomas Brown.

   Per Curiam.

This is defendant’s rule to show cause why plaintiff’s verdict of $4,500 should not be set aside.

Plaintiff’s intestate was killed on June 15th, 1924, by being thrown out of a roller coaster owned and operated by the defendant, he being a passenger on the coaster at the defendant’s place of amusement in Newark. The accident happened on a Sunday’. Plaintiff’s intestate was accompanied by his three sisters, his young brother and his brother-in-law. He took seven rides all told, and lost his life on the seventh ride, his brother-in-law and his brother being with him in the coaster, he sitting in front with his brother-in-law and his brother sitting on the back seat.

According to the testimony he went around safely on the six previous Tides. On the seventh ride, when they got to the last dip, as they neared the top, there was a sudden and violent jerk, jerking the passengers forward and jerking the decedent completely over the front of the machine. A witness (who was riding in the car) described the jerk as comparable with the sudden putting on of brakes in an automobile going at terrific speed and then suddenly letting them off again, the effect being to pull the body forward. And there was testimony tending to show that this sudden jerk at that point showed improper construction of the coaster and its appliances. There was also evidence tending to show that the only provision for holding on, or safe-guarding the rider, was a rail extending across the car in front of the front seat, and that this was below the riders’ knees, from which negligence might be inferred with respect to the construction of the machine.

The defendant undertook to show that the deceased was standing up in the car at the time the accident occurred; hut this was emphatically denied by all of plaintiff’s witnesses, several in number. It is also said that decedent was negligent in not holding on; but that question was a proper question for the determination of the jury.

We cannot say that the verdict, in respect to any of such questions, was against the great weight of the evidence, and we do not think the motion for nonsuit or for the direction of a verdict could have been properly directed.

We have examined with care the complaints with reference to the admission and exclusion of evidence, and the charge of the court. We find nothing therein from which it appears, after an examination of the whole case, that there was any error injuriously affecting the substantial rights of the defendant.

The rule to show cause will be discharged.


author: Pek Curiam.

text:
    BENJAMIN MacCLELLAN, PLAINTIFF, v. GENERAL CASUALTY AND SURETY COMPANY, A CORPORATION, DEFENDANT. ADELE ROWAN, PLAINTIFF, v. GENERAL CASUALTY AND SURETY COMPANY, A CORPORATION, DEFENDANT. LAURA O’NEIL, PLAINTIFF, v. GENERAL CASUALTY AND SURETY COMPANY, A CORPORATION, DEFENDANT
    Decided November 13, 1926.
    Insurance—Liability—Auto Bus—Carrier Company Contract Provided For Insurance Against Accident in Atlantic City and Vicinity—Accident Occurred Eighteen Miles Outside Atlantic City—Held, That it was Within “Vicinity”—Policy of Insurance Considered at Length Together With Riders Attached, and Held, That the Judge’s Charge That it was Unnecessary to Consider Statutory Obligations Imposed by Chapter 136 of the Laws of 1916, Since the Terms of the Policy Were Ample For the Plaintiffs to Maintain Their Action was Correct—Contract Found to be in Harmony Both With Statutory and Public Policy—Nothing in Statute Which Bars the Increase of the Amount of Insurance or the Liability of Insurer Above the Statutory Sum.
    On appeal from the Atlantic County Circuit Court.
    Before Gummeke, Chief Justice, and Justices Kalisch and Campbell.
    Eor the appellants, William Charlton.

    For the respondent, Paul M. Salsbwrg.

   Pek Curiam.

The eases on appeal, by consent of counsel, were tried together before Judge Schimpf, sitting without a jury. The actions before him were predicated upon separate judgments obtained theretofore by the plaintiffs in separate actions brought by each in the Atlantic County Circuit Court against Cleveland G. Waites. Waites was the owner of a jitney under the ordinances and regulations of the city of Atlantic City, which regulations are solely based upon chapter 136 (Pamph. L. 1916) and the amendments thereof. The section of the statute referred to, inter alia, provides that no auto bus, as defined by the act, shall be operated wholly or partly along any street, &c., unless the owner or owners thereof shall have the consent of the board or body having control of public streets in such city for the operation of the bus, and that “no such operation shall be permitted until the owner of such auto bus in any city shall have filed, with the chief fiscal officer of the city in which said auto bus shall be licensed and operated, an insurance policy of a company duly licensed to transact business under the insurance laws of the State of New Jersey in the sum of $5,000 against loss from the liability imposed by law upon the auto bus owner for damages on account of bodily injury or death suffered by any person or persons as a result of accident occurring by reason of the ownership, maintenance and use of such auto bus upon the public streets of such city” * * *. A policy of insurance was issued to Waites by the defendant insurance company upon his jitney in the sum of $5,000 as required by the act referred to. The schedule attached to the policy provides in statement 7: “The purpose for which the above-described automobile vehicles are to be used are jitney.” Statement 8 : “The automobiles covered hereby are and will be principally maintained and garaged in the city or town of Atlantic City, New Jersey.” Statement 9: “The automobiles covered hereby are and will be principally used in the city or town [and its vicinity] of Atlantic City, New Jersey.”

After a stipulation was entered into between counsel to the effect that the three cases be tried together and that the final judgment of each plaintiff against the jitney owner, Waites, is within the limits of the insurance policy as stipulated in condition L, and has not been paid, it was further stipulated that the accident occurred at Fifth avenue and White Horse pike, in Atlantic county, October 7th, 1933, and that the amount of the judgment obtained by Laura O’Neil against Waites is $650. Counsel of plaintiffs then offered the insurance policy issued by the defendant company to Waites in evidence, and by consent of counsel of defendant company it was so received by the court. The plaintiffs then rested. ■ ■

Counsel of defendant moved for a direction of a verdict for the defendant on the ground “that one of the essentials of the plaintiffs’ proof is that the defendant Waites had complied with the terms and conditions of the policy. That is denied in the answer, and there is no proof here.” Whereupon, the court said: “Well, I think if you want to I will let you open your case to put in your defense.” There was no objection to this course and the defendant? put in its defense.

Among the findings of the fact made by the trial judge, he decided, as a matter of law, that since the facts show that the auto bus, at the time of the accident, was operated for hire, and though the accident occurred at a distance of eighteen miles from Atlantic City, about a mile or a mile and a half from Egg Harbor, in Atlantic county, and while the auto bus was enroute to Atlantic City, it came within the description of statement 9 of the policy of insurance of an auto bus being operated within the vicinity of Atlantic City. There was no error in this judicial finding.

The late Vice Chancellor Stevens, in Madison v. Morristown Gaslight Co., 63 N. J. Eq. 130, sheds much light on what is meant by the term “vicinity” (at p. 133). This profound jurist, after discussing the interpretation to be given to the word vicinity as found in the contract which he was then construing, says: “Vicinity is defined by Webster as That which is near and not remote.’ ” Certainly, to a legislature speaking from Trenton, sixty miles distant, Madison would be understood as being in the vicinity of—near—not remote from Morristown. In Jacob’s Law Dictionary the term "vicenetum” is defined as locus queim vicini habitant, and Burrill’s Law Dictionary it is said to have been anciently understood of the same vill or the parts adjacent, but in later law of the same county.

And, so, there may be added to what has been said that from time immemorial it has been understood that a jury of the vicinage includes a citizen living in the remotest part of a county, regardless of its territorial extent,* and at a great distance from the place where the litigants reside and whose controversy is to be tried by a jury. In Connell v. Commonwealth Casualty Co., 96 N. J. L. 510, our Court of Errors and Appeals held that Newark, a city in Essex county, came within the term “vicinity” of Passaic, in Passaic county, and Garfield and Lodi in Bergen county, under a clause in the insurance policy which was as follows: “The purpose for which the automobiles are to be used, and will continue to be used, during the period of this policy, are ‘passenger’ service, in Passaic, N. J., Garfield, N. J., Lodi, N. J., and vicinity.” The accident happened in Newark, New Jersey. As the accident in the present case happened near Egg Harbor, in the same county where Atlantic City is situate, and the policy of insurance upon which the plaintiffs’ actions are based, contains a like clause to that which was interpreted in Connell v. Commonwealth Casualty Co., supra, the finding of the trial judge that Egg Harbor was in the vicinity of Atlantic City cannot be successfully assailed.

The only other ground of appeal argued in appellant’s brief and on which a reversal of the judgments under review is urged, is that the trial judge erred in determining that it was unnecessary to consider the statutory obligations contemplated by chapter 136, supra, since the terms of the policy of insurance sued upon were ample for the plaintiffs to maintain their actions against the defendant company on the contract of insurance entered into by it with Waites, the jitney owner and operator. The argument advanced on behalf of the appellant in support of the position taken by it is that chapter 136 related to “injuries suffered while the automobile was being operated upon the public streets of Atlantic City, and indiscriminately accepting and discharging such persons as offer themselves for transportation at various points along the route,” and that this was not the case here, since it appeared that the accident occurred eighteen miles from Atlantic City, “and that it was not intended to cover ' persons riding or walking at a distance of eighteen miles from a municipality * * * and that the defendant-appellant, in making its contract comply with the law [never], intended that it should be bound to protect such persons and have the benefits of the policy inure to them.” This position is untenable and the fabric on which it rests finds no support from a fair reading of the terms of the contract of insurance, and is completely subverted by the express terms of the two riders attached to the policy. The policy, on its. face, appears to be a general one indemnifying the assured “against loss from the liability imposed by law upon the assured for damages” * * :|: caused by automobile vehicles described in statement number 5 of the schedule, or by the loading or unloading of merchandise carried on vehicles of the commercial type, within the United States and Canada, subject to certain conditions. Thus, it is to be seen that the insurance was against accidents by automobile vehicles without regard whether the accident occurred within the United States or Canada, in cases where liability was imposed by law. This liability manifestly could arise from the common law or from a statute. By clause 5 of condition A in the contract of insurance, the defendant exempted itself from liability, in case the automobile vehicle was “being used for rental or livery purposes or for the carrying of passengers for a consideration.” By “Statement 9” of the schedule of the policy, as has been already alluded to, the automobile vehicles are to be principally used in Atlantic City and its vicinity. By the first rider attached to the policy it was agreed between the insurer and the assured that' clause 5 of condition A reading: “Being used for rental or livery purposes or for carrying passengers for a consideration is hereby eliminated and shall form no part of the policy contract.” The cancellation of this clause was, in legal effect, an agreement on part of the insurer to indemnify the assured against loss from the liability imposed by law -upon the latter “for damages on account of bodily injuries, including death resulting at any time therefrom, accidently suffered or alleged to have been suffered by any persons * * * caused by automobile vehicles,” being used for rental or livery purposes or for the carrying of passengers for a consideration. The only limitation on the general terms of the policy in that regard is, that the accident must have taken place in Atlantic City or in its vicinity.

Moreover, if there could exist the shadow of a doubt as to whether the liability imposed by law on the insurer must be determined solely by the provisions of chapter 136, supra, that doubt is dissipated by the express provisions of the second rider attached to the insurance contract, which, among other things, stipulates: “Notwithstanding anything herein contained to the contrary, this company will pay any final judgment within the limits of this policy as stipulated in condition L, recovered by any person or persons on account of the ownership, maintenance and use of the automobile described therein, or any fault in respect thereto, and it is further understood that this contract shall be for the benefit of every person suffering loss, damages or injury as deeribed in this contract or as described in the terms of an act,” referring to chapter 136 of the laws of 1916, supra. So, it is quite manifest that it was the express design of the defendant company, as unequivocally stated by it in the rider attached to the policy, not only to obligate itself to pay any judgment recovered by any person suffering loss, damage or injury against the assured in the circumstances as described in the contract of insurance, but also as described in the terms of the statute. The circumstance that the insurer contracted to obligate itself to a greater extent to the assured and to those for whose benefit the contract was made than was required by the statute is no valid defense. Its defense of non-liability on its contract is in the nature of a plea of ultra vires. It cannot properly avail itself of such a defense. There is naught in the contract which contravenes the statute or which is against the declared statutory policy of this state. The contract appears to be rather in harmony with the public policy.

The prime object of the statute was to protect the public by providing .a means by which persons injured by automobile vehicles owned and maintained by an irresponsible owner should be enabled to collect a judgment obtained against such owner. The statute therefore ordained compulsory insurance on part of the owner of an automobile vehicle before he shall be permitted to lawfully operate or maintain such vehicle to carry passengers for hire in the public street. The statute fixes the amount of insurance to be carried by the owner for the benefit of those persons injured, &c. There is nothing in the statute which in anywise bars an insurance company from increasing the statutory sum of insurance or from extending its liability by its contract of insurance.

We, therefore, agree with the- view entertained by the learned trial judge that the plaintiffs were entitled, independently of the statute, to maintain their actions on the contract of insurance.

Each of the judgments appealed from is affirmed, with costs.


text:
    New Jersey Department of Labor, Workmen’s Compensation Bureau.
    LEO PISZKOWSKI, BY ADAM PISZKOWSKI, HIS NEXT FRIEND, PETITIONER, v. JOSEPH SIDORSKI, DEFENDANT.
    Employe, a Boy, Alleged to Have Been Injured by Fall From Scaffold Upon Which He was Working—Allegations of Petitioner and of Respondent Opposed to Each Other on Almost All Points—Upon Examination of Facts it Appears That All Employes Except One Had Been Laid Off, That the Injury Came From a Fall After Being Laid Off, and That the Injured Boy’s Presence on the Scaffold was for Play, Not for Work.
    For the petitioner, Frederick I. Pelovitz.

    Eor the respondent, George W. Allgair.

   The facts involved in the case are in practically every instance the subject to testimony diametrically opposed to the assertions of the proponents thereof. To begin with, the petitioner asserts that the duties which he was hired to perform were mainly those of a hodcarrier—that is, he was obliged and required to carry brick, tile and mortar up a ladder to the scaffold erected on the outside of a building then under the course of construction at Manville, Somerset county, New Jersey. Although the petitioner substantiates this story by one Stanley Kache, who likewise testified to performing tasks identical with those claimed to have been rendered by petitioner. I am inclined to accept the respondent’s contention that the petitioner was not employed in such a capacity, but was employed primarily as a water boy and to line up brick on the wall from the inside of the building. This view is reached owing to the slight build of the petitioner, which would have made it practically impossible for him to have rendered the services as a hodcarrier^ and also because of the testimony of the hodcaxrier who actually performed that work.

It seems that both petitioner and respondent agree that a special face brick was being used for the outside wall of the building on which petitioner was working. The respondent and numerous workmen in his employ claim that on the 13th of August, 1925, which was the day of the petitioner’s injury, that there was a shortage of this special face brick. A Mr. E. M. Krug, who was the principal contractor, testified to noticing this shortage in the middle of the morning of the 13th, and of informing the respondent of that condition. Respondent thereupon contends that he went to the job in question about twelve o’clock noon, and laid off all of his men until such times as he should be able to obtain another shipment of special face brick, which it is agreed could not be obtained locally.

At this point the testimony of the petitioner and respondent again come into conflict. The respondent and his witnesses are adamant in their story as to the dismissal; the petitioner, however, as strenuously asserts that this lay-off did not take place -until the afternoon of the 13th at about two o’clock. The petitioner claims that when the respondent came to the job it was about two o’clock, and that all the men were sent home with the exception of one Julius, himself, and the other boy, Stanley Kache.

The two boys insist that they were directed by respondent to remain on the job and to assist Julius in the extending of the scaffold, which would have to be enlarged so as the work might be speedily completed upon the arrival of the brick. The respondent denies such a state of affairs, and he and Julius claim that the employment of Julius arose out of Julius’ complaint to the respondent on the way home, over being compelled to lose time. Respondent says that because of the dissatisfaction on the part of Julius he sent Julius to work on the scaffold. Respondent emphatically denies the story reiterated by the petitioner in this respect, and asserts that he was not near the job in the afternoon until after the accident took place. A woman residing near the job, who tells of playing with her children on the lawn overlooking the building which was being constructed, says that the first time Sidorski came to the job in the afternoon was after the accident. Mr. E. M. Krug, who has been previously referred to, also tells of conversing with the respondent some two miles from the building at practically the same time petitioner asserted respondent was at the job.

Julius, who it is admitted was building the scaffold, says that petitioner with other boys was playing about the building in the afternoon. Julius says that Stanley Kache carried some boards up to him, but denies that he was in any manner assisted by the petitioner. The neighbor woman testified further to the effect that she saw the petitioner fall some ten feet or more from where Julius was working, and immediately thereafter saw some other boys run away from the building.

The respondent went to the job at about three o’clock and there found the petitioner in considerable pain. Respondent rushed the petitioner to the Somerset Hospital, at Somerville, New Jersey. Doctor William H. Long was called in attendance and took immediate charge of the injured boy. The petitioner and his family it seems became greatly dissatisfied with the treatment, although at the hearing they denied such to be the case. The hospital records show that' Adam Piszkowski, who brings this action for the petitioner as his next friend, signed a discharge from the hospital for ‘ the removal of the petitioner contrary to the wishes and advice of Doctor Long. The petitioner was removed to Saint Peter’s Hospital in New Brunswick, New Jersey, and placed under the care of Doctor Anthony Gruessner, who some time ‘ later performed an operation on the petitioner, which resulted in practically an entire recovery on the part of the petitioner from his injuries. Doctor Gruessner was of the opiidon that there would be a slight permanent loss of function owing to the broken shoulder. The respondent says that, in the first instance, he supplied the petitioner with hospital and medical care because of his sympathy aroused by the boy’s condition, but that he felt in nowise legally obliged to continue after the dissatisfaction evidenced by the petitioner and his subsequent removal to New Brunswick.

Careful consideration of the testimony obliges me to conclude that the petitioner has not told the truth as to what transpired on the 13th of August, 1925. It was natural that the respondent should lay off his men when he had no further work for them, and I cannot find any evidence satisfactorily showing that respondent re-engaged the petitioner in the afternoon for the purpose of building the scaffold. I find that the petitioner was merely playing about the building with other boys at the time of his injury, and sustained no injury while in the employment of the respondent, such being the case.

* * ******

Chables E. Coebin,

Deputy Commissioner of Compensation.


text:
    MARGARET S. CAMPBELL, PLAINTIFF, v. GEORGE K. FITZSIMONS, DEFENDANT.
    Submitted May 15, 1926
    Decided November 13, 1926.
    Marriage—Breach of Promise—Plaintiff’s Verdict Not Against Weight of Evidence, but in Complete Harmony With it— Under the Evidence Suit was Not Prematurely Brought.
    On defendant’s rule to show cause why plaintiff’s verdict should not be set aside.
    Before Gummeee, Chief Justice, and Justices Trenchard and Mintuen.
    Eor the rule, Joseph F. Farmer (Warren Dixon, of counsel).

      Contra, Alexander Simpson.

   Per Curiam.

This is defendant’s rule to show cause why plaintiff’s verdict for $20,000 should not be set aside.

The action was for breach of promise of marriage, plaintiff alleging that defendant made the contract with her and broke it. Plaintiff’s case established, among other things, that defendant “kept company” with her for seventeen years; that very shortly after the beginning of their acquaintance defendant began to talk of marriage to her, and was almost continually in her society over this long period of years, professing love and affection; that he wrote her many love letters which were produced at the trial; that their relations were most intimate; that he continually made excuses why he did not fix a definite date for marriage; that in December, 1924, he fixed June 16th, 1925, as the date for the marriage; that on February 17th, 1925, he appeared at her home and wanted her to sign a release, saying that he did not intend to marry her, bnt would pay her $75 a month during her lifetime, and definitely refused to marry her on the 16 th of June next following, as he had contracted'to do.

The defendant denied that he had ever agreed to marry her, but he admitted that he had the release drawn and tried to get her to sign it. The defendant’s case seemed to stand practically on his unsupported testimony.

We cannot say that the verdict is against the great weight of the evidence. On the contrary, we think the weight.of the evidence is with the plaintiff.

We do not think that,the plaintiff could have been non-suited. Under the evidence the suit was not prematurely brought. Coil v. Wallace, 24 N. J. L. 291.

Nor can we say that the verdict is excessive in view of the evidence.

The rule to show cause will be discharged.


author: Pbk Curiam.

text:
    SAM SIRAKI, PLAINTIFF, v. MAX WEISSMAN AND JOSEPH RADWIN, JOINTLY OR IN THE ALTERNATIVE, DEFENDANTS.
    Submitted May 15, 1926
    Decided November 13, 1926.
    Negligence—Motor Vehicle Accident—Injury to Pedestrian— Verdict For Plaintiff Unsatisfactory—Rule to Set it Aside Asked For—Held, That Though Reward was Small, the Jury Saw and Heard Plaintiff, and Court Does Not Seem Justified in Disturbing It.
    On plaintiff’s rule to show cause why his own verdict should not be set aside.
    Before Gummere, Chief Justice, and Justices Trenchard and Mintuen.

      Eor the plaintiff, Ranzenhofer & Ranzenhofer (Frederick 8. Ranzenhofer, of counsel).

      For the defendants, Weissman, Kdlisch & Kalisch.

   Pbk Curiam.

This is a suit for damages to plaintiff, and was brought against the two defendants jointly and in the alternative. The jury rendered a verdict in favor of the plaintiff and against both defendants in the sum of $1,500.

The plaintiff was dissatisfied with this verdict and obtained this rule to show cause why it should not be set aside. In effect, the main, and we believe the only, contention is that the verdict is inadequate.

The cars of the respective defendants collided at a street intersection in Passaic. The defendant Weissman’s car came up on the sidewalk, where plaintiff was standing conversing with a friend, and hit and injured him.

The plaintiff’s left knee cap was fractured. He was a weaver and earned, as the jury might have found, $35 a week. He was kept out of work for twenty-three weeks and he testified that he laid out $138 for medical attendance. He contends that $1,500 is insufficient.

We do not feel that we would be justified in disturbing the verdict. We think that the evidence justified the conclusion that the injury is not of a permanent character. It discloses that the plaintiff has resumed work and is earning, or was earning at the time of the trial, $30 a week. It is true that at the time of the trial he complained of some trouble in standing, and there was some evidence of swelling and of loss of flexion. But the jury saw the plaintiff and heard him testify, and while the verdict is small, we do not think it js. so small as to justify us in disturbing it. That was the result reached in a somewhat similar case. Corum v. Davis, 3 N. J. Mis. R. 981.

The rule will be discharged.


author: Pee Cueiam.

text:
    RICHARD DOHERTY v. CHARLES J. ROMANO ET AL., PARTNERS, ETC.
    Decided November 16, 1926.
    Negligence—Injury to Plaintiff and His Automobile by a Crane Used in the Repair of the Highway—Jury Found For Plaintiff—Compensation For Injury to Automobile, but Nothing For Personal Injury—Defendant Obtained Rule to Show Cause—Held, That Claim That Plaintiff was Entitled to at Least Nominal Damages For Personal Injury if He is to be Compensated For Property Damage, Should Not be Sustained —Verdict Not Against Weight of Evidence—No Error in Charge.
    On defendants’ rule to show cause.
    Before Gummeee, Chief Justice, and Justices Teenchabd and Mintuen.
    Eor the rule, Thomas Brunetto.

      Contra, Richard Doherty, pro se.

   Pee Cueiam.

This action was brought by the plaintiff to recover compensation for personal injuries received by him and for damage done to his automobile through coming in contact with a cable, with a bucket suspended therefrom, while driving along Amboy avenue, between Metuehen and Perth Amboy. The trial resulted in a verdict against the defendants, the jury awarding the plaintiff compensation for the damage done to his automobile, but allowing him nothing for personal injuries, and the former thereupon applied for and obtained the present rule.

The material facts are as follows: The defendants were engaged in laying a sewer in the highway along which the plaintiff was driving. According to the proofs submitted by the. plaintiff, the defendants had an excavating machine standing on one side of the road. There was attached to this machine a boom, from which a chain was suspended, at the end of which was attached a large bucket used for the purpose of shifting earth. The top of the boom was something like twenty feet or more above the surface of the road. As the plaintiffs car approached the place where the excavating machine was standing, the boom, with the cable and bucket attached, suddenly swung across the road so as to overhang that part of it along which he was traveling. This was done without any warning, and the plaintiff failed to observe the bucket and the ■ cable until just the instant before his automobile crashed into them.

The first ground upon which we are asked to order a new trial is that the verdict rendered by the jury is contrary to law, for the reason that compensation was awarded to the plaintiff for injury done to his automobile, but nothing was allowed for personal injuries sustained by him, when he was entitled at least to nominal damages on that account. Assuming this to be the fact, the action of the jury was not injurious to the defendants. If the accident was one for the happening of which they were liable, they cannot justly complain because the jury relieved them from compensating the plaintiff for personal injuries which, if received, were so slight as to justify only an award of nominal damages.

Next, it is contended that the verdict is against the weight of the evidence, both on the finding of negligence against the defendants and the finding that the plaintiff was not guilty of contributory negligence. Our examination of the proofs leads us to the conclusion that these findings by the jury were fairly justified by the proofs submitted.

Lastly, it is argued that the trial judge erred in charging the jury with relation to the right of the traveling public to assume that there is no dangerous impediment for obstruction of a temporary nature in any part of the highway, unless proper warning is given of its existence by the person responsible for its presence there. The instruction complained of was in accord with the legal rule exploited in the case of Matheke v. United States Express Co., 86 N. J. L. 586, and there was no error in the adoption by the trial court of this rule in dealing with this phase of the case in its charge to the jury.

The rule to show cause will be discharged.


text:
    HARRY KRIEGER ET AL., RELATORS, v. JOHN G. SCOTT, BUILDING INSPECTOR, AND THE CITY OF EAST ORANGE, RESPONDENTS.
    Decided November 16, 1926.
    Zoning—Stores and Apartments in Restricted Territory—Record Fails to Disclose That Relators Owned the Property in Question—Peremptory Writ Refused.
    On alternative writ of mandamus.

    ■ Before Gummere, Chief Justice, and Justices Trenchard and Minturn.
    Eor the respondents, Walter G. Ellis.

    (The relators were not represented by counsel.)
   Per Curiam.

The relators applied to Scott, the building inspector of the city of East Orange, for a permit to. erect a two-story brick structure, containing six stores on the first floor and four living apartments on the second, ón a plot of ground fronting on William street, in that municipality. The permit was refused on the sole ground that it violated the zoning ordinance of the city. An alternative writ having been allowed, the case came on to be heard on the question of whether a peremptory writ should issue.

Our examination of the record discloses that neither the alternative writ nor the agreed state of facts show that the relators are the owners of the property on which they proposed to erect the building referred to in their application, or that they had any interest whatever therein. It is hardly necessary to say that, unless they were the owners of the property or had such an interest therein as would entitle them to erect the proposed building thereon, the inspector w“as justified in refusing to issue a permit, although the reason for his refusal afforded no support for his action.

We conclude therefore that, for the reason indicated, a peremptory writ should be refused.


text:
    GEORGE R. CROSS v. ANTONIO COSTA ET AL.
    Decided November 16, 1926.
    Negligence—Injury to Person on a Safety Isle Caused by the Collision of Two Automobiles—'Verdict Against the Two Defendants, Owners of the Respective Automobiles—No Error in Excluding Proof That One of the Defendants Had Settled With the Other For the Damage Done Him—Neither Party Can Relieve Himself or His Co-defendant From Liability to the Plaintiff Merely by Agreeing That the One and Not the Other was Responsible For the Accident—Verdict Held Not to Have Been Excessive.
    On defendants’ rule to show cause.
    Before Gummeee, Chibe Justice, and Justices Tbenchard and Minturn.
    Eor the rule, J. Emil Walseheid.

      Contra, De Turck & West.

   Pee Curiam.

This was an action for personal injuries. The plaintiff, while standing on one of the islands, or small parks, in the center of the Hudson county boulevard, was run over and injured by an automobile driven by the defendant Costa. This automobile had collided with another car, which was being driven by the defendant DeKimpe, the result of the collision being to drive the Costa car upon the island, or park, and over the person of the plaintiff. The trial resulted in a verdict against both of the defendants, the jury awarding the plaintiff, as compensation for his injuries, the sum of $4,000.

The first ground upon which we are asked to set aside the verdict is that it is excessive. If the jury believed that the physical condition of the plaintiff after the accident was as testified to by himself and by his attending physician, Dr. Poole, the verdict is not excessive. If, on the other hand, the injuries were comparatively slight, as testified to by the medical expert called by the defendant, one Dr. Protzman, then the verdict is excessive. The jury evidently believed the plaintiff as to the condition in which he was left as the result of the accident, and his physician as to the character of the permanency of the injuries. This it had a right to do, and we cannot say, in the face of its finding upon this point, that the verdict is excessive.

The only other ground argued before us for setting aside this verdict is that the trial court erroneously excluded a reply to the foUowing question, put by the attorney of the defendant DeKimpe to the defendant Costa, while the latter was on the witness-stand: “Is it a fact that you settled with Mr. DeKimpe for your car ?” In our opinion, this question was properly overruled. Assuming it to be the fact that the two defendants settled as between themselves the question of liability, that fact was not evidential as against the plaintiff. Neither party could relieve himself or his co-defendant from liability to the plaintiff merely by agreeing that the one and not the other was responsible for the accident.

The rule to show cause will be discharged.


text:
    WILLIAM A. GIBSON, ADMINISTRATOR AD PROSEQUENDUM, v. PUBLIC SERVICE RAILWAY COMPANY.
    Decided November 16, 1926.
    Negligence—Death of Boy Fourteen Years of Age While Crossing Tracks of Trolley Company—Verdict of $7,500 Held Excessive, and Either a Reduction to $4,500 or a New Trial was Ordered.
    On defendant’s rule to show cause.
    Before Gummere, Chief Justice, and Justices Trenchard and Minturn.

      For the rule, Joseph Coult.

    Contra, John E. Toolan.

   Pee Curiam.

This suit was brought to recover for the death of the plaintiff’s intestate, one John Gibson, a boy of fourteen years of age, who was struck by a trolley ear of the defendant company while crossing its tracks in the township of Earitan, in Middlesex county. The verdict of the jury was in favor of the plaintiff, and the damages were assessed at $7,500.

The only ground upon which we are asked to make the rule absolute is that the verdict is excessive. The present case is quite similar to that of the DeBelmonte, Admx., v. Harrop Co., decided at the February term, 1922, the opinion not being officially published. That suit was brought to recover damages for the death of a boy twelve years of age. The jury awarded a verdict of $7,000. This court, for the reasons expressed in the opinion filed, considered the award excessive and reduced it to $4,500. The case of Hoar v. Public Service Railway Co., 4 N. J. Mis. R. 716, is also similar to the present case.

For the reasons stated in the opinion in the case first cited, we conclude that the present verdict is excessive. If the plaintiff will agree to reduce the amount thereof to $4,500 he may enter judgment for that sum. Otherwise the rule to show cause will be made absolute.


text:
    EMIL OLMER v. NAGLE PACKING COMPANY.
    Decided November 16, 1926.
    Negligence—Injury to Plaintiff at a Street Crossing Caused by an Automobile—Allegation That Negligence of Defendant was Not Shown, and That Contributory Negligence of Plaintiff was Shown, Not Sustained—Verdict Not Excessive Nor Against the Weight of Evidence.

      On defendant’s rule to show cause.
    Before Gummere, Chiee Justice, and Justices Trenchard and Mintubn.
    For the rule, Frank É. Turner.

      Contra, Samuel L. Hirschberg.

   Per Curiam.

The plaintiff sued to recover compensation for injuries received by him when struck by an automobile driven by one Finklestein, an employe of the defendant company, while he was crossing a public highway at Homestead, in Hudson county. The trial resulted in a verdict in favor of the plaintiff, his damages being assessed at $2,500.

The first ground upon which we are asked to set aside this verdict is based upon the alleged erroneous refusal of the court to direct a nonsuit. The motion for the .direction was rested upon two grounds—first, that the plaintiff’s ease was barren of any evidence showing negligence on the part of the defendant’s employe in the driving of the car, and second, that the plaintiff was conclusively shown to have been guilty of negligence contributing to the accident. Our examination of the testimony leads us to the conclusion that the trial court was right in refusing this motion. On the evidence submitted, the questions of negligence on the part of the defendant’s employe, and of contributory negligence of the plaintiff, were both matters for the determination of the jury.

It is next contended that the verdict is excessive. Our examination of the testimony leads us to the conclusion that this contention is without merit.

Lastly, it is argued that the verdict is against the weight of the evidence. Our examination of the testimony leads us to the contrary conclusion.

The rule to show cause will be discharged.


text:
    HYMAN SULTAN v. LONDON ASSURANCE CORPORATION ET AL.
    Decided November 16, 1926.
    Insurance—Fire—Not Shown That Plaintiff was Guilty of Fraud —Though the General Rule For Fixing Value of Chattels is to Show What They Will Bring as Between a Willing Seller and a Willing Buyer, and if They Have No Market Value, Then Their Worth by the Opinion of Experts, Yet Where Goods Damaged by Fire are to be Appraised, These Rules are Not Entirely Applicable, and Their Price at Public Auction is of Some Slight Evidential Value—Plaintiff Did Sustain the Proof of Value of Insured Property.
    On defendants’ rule to show cause.
    Before Gummere, Chiee Justice, and Justices Trenchaed and Mintuen.
    For the rule, Arthur T. Vanderbilt.

      Contra, Harry Heher and Maxwell A. Kraemer.

   Per Curiam.

The plaintiff brought this suit upon policies of insurance issued by the various defendant companies to recover for the loss sustained by him through the destruction by fire of the property covered by the policies. The trial resulted in a verdict in his favor, the amount awarded him by the jury being $21,170,

The first ground upon which we are asked to make this rule absolute is that it was established by the clear weight of the evidence that the plaintiff was guilty of fraud and false swearing with relation to the property insured both before and after the alleged loss, and that the verdict of the jury, which, by implication, holds the contrary, should not be permitted to stand. Our examination of the testimony on this point leads us to the conclusion that the questions of fraud were clearly for the determination of the jury, and that its finding is not so plainly against the weight of the evidence as to justify setting aside the verdict upon this ground.

The second point urged for setting aside the verdict is that the trial court erred in admitting evidence concerning the price that the few goods which remained after the fire, but which were considerably damaged thereby, brought at a public auction sale. As a general rule, the proper method of proving the value of chattels is to show what they wiE bring as between a willing seller and a willing buyer; and, if they have no market value, then to prove what they are worth by the opinion of experts. But, as we see it, this rule has no application to a case like the present, for, manifestly, chattels injured or partially destroyed by fire can have no market value, and it would seem equally true that their value cannot be the subject of expert opinion. When such a situation is presented, we think that the price brought at a pubEc sale is some slight evidence of the property so damaged. We conclude therefore that this second point is also without merit.

The third and last point argued on behalf of the defendants is that the plaintiff failed to sustain by a preponderance of the evidence the value of the insured property and the extent of its damage by fire. Our examination of the testimony sent up with the rule leads us to the contrary conclusion; and, as a result of this conclusion, we consider that the suggestion of counsel that the verdict is excessive is without substance.

The rule to show cause will be discharged.


text:
    GEORGIANNA COX ET UX. v. WILLIAN ROSENVINGE AND JENNIE H. SCOTT. JOHN ADAMS v. WILLIAM ROSENVINGE AND JENNIE H. SCOTT MARGARET L. RICE ET UX. v. WILLIAM ROSENVINGE AND JENNIE H. SCOTT.
    Decided November 16, 1926.
    Negligence—Three Cases Tried Together—Plaintiffs in Two Cases Were Passengers in Bus Owned by One Defendant While in Collision With Bus Owned by Other Defendant; Third Plaintiff was Owner and Driver of Horse-drawn Vehicle Also in the Collision—Third Plaintiff Had Already Obtained a Rule Because of Inadequacy of a Verdict, and This Appeal, Consequently, is Premature—Judgments of First and Second Plaintiffs Against Defendant Rosenvinge Affirmed— Judgments Against Defendant Scott Reversed Because of Error in Charge to Jury in Which Court Said Plaintiffs Were Entitled to Verdict.
    On appeals from the Middlesex Circuit Court.
    Before Gummere, Chief Justice, and Justices Tbenchabb and Minturn.
    For the appellants, William F. Vosseller and August C. Streitwolf.

    For the respondents, John A. Coan.

   Per Curiam.

The above actions were brought by the several plaintiffs to recover compensation for injuries received by them, respectively, arising out of a collision between a truck belonging to the defendant Jennie Scott, a bus owned and operated by the defendant Eosenvinge, in which Mrs. Cox and Mrs. Eice were passengers, and a horse-drawn vehicle belonging to and driven by the plaintiff Adams. The cases were tried together, by order of the court, and the trial resulted in verdicts against the defendants in each case. In the Cox and Eice cases judgments were entered upon the verdicts, and from those judgments the defendants severally have appealed.

In the Adams case the plaintiff applied for and obtained a rule to show cause why a new trial should not be directed for inadequacy of the verdict, and upon the return of that rule it was made absolute. The defendants have appealed in this case from the judgment nisi entered on the "first verdict. It is manifest from the facts stated that this latter appeal is prematurely taken. No final judgment having been entered, there is nothing before us to review. This appeal, therefore, will be dismissed.

The appeals of Eosenvinge, taken from the judgments in the Cox case and the Eice case, are each of them based solely upon the contention that the trial court erred in refusing to' order a nonsuit or direct a verdict because of the failure of proof showing that the accident was the cause of negligence on his part. Our examination of the state of the case sent up with the appeals satisfies us that the questions of his negligence and of its being the proximate cause of the accident were for the determination of the jury and not the court. We conclude, therefore, that the judgments against Eosenvinge in each of these two cases should be affirmed.

As to the appeals of Jennie Scott in these cases: One of the grounds relied upon for a reversal of the judgments against her is directed at the following instruction of the trial judge to the jury: “This lady [Mrs. Cox] is entitled to a verdict. She is entitled to a verdict for the pain and suffering she endured, for her permanent injuries. * * * Then she is entitled to compensation for any permanent injury that there is. Now, as to Mrs. Eice: If you bélieve that she suffered any injuries, and any pain and suffering she endured, she is entitled to he compensated for that.” This instruction was clearly erroneous, and, manifestly, was harmful to the defendants. It took from the jury the question of liability on the part of the defendants, or • one of them. It is true that the trial judge modified this instruction to some extent in other portions of his charge, but the rule is well settled that an erroneous instruction followed or accompanied by a correct one is not cured by the latter, unless it is also expressly withdrawn, the reason being that the jury is left at liberty to adopt either of the contrary instructions. State v. Tapack, 78 N. J. L. 208; Collins v. Central Railroad Co. of New Jersey, 90 Id. 593.

For the reason indicated, the judgments against Mrs. Scott in these two cases will be reversed.


author: Pee Cukiam.

text:
    PATSY BOSCO, BY NEXT FRIEND, ET AL., v. JACOB SEGAL ET AL., PARTNERS, ETC.
    Decided November 16, 1926.
    Negligence—Workmen’s Compensation—Plaintiff, a Boy, was injured While Working For Defendant—Defendant Claimed He was Regularly Employed and His Injury Should be Compensated Under the Compensation Act—Plaintiff Held the Employment to be Casual—Lower Court Sustained Plaintiff’s Contention—Facts Examined, and Held That Lower Court Erred In Not Submitted Case to Jury.
    On appeal from the Middlesex Circuit Court.
    Before Guwmere, Chief Justice, and Justices Trenchard and Minturn.
    For the appellants, Louis L. Hendler and Edmund A. Hayes.

    For the respondents, Samuel D. Hoffman.

   Pee Cukiam.

This action was brought by the plaintiff Patsy Boseo, a boy of sixteen years, and his father, to recover compensation for injuries received by the. son while working for the defendants, who were engaged in the business of manufacturing and selling mineral water under the name of the New Brunswick Bottling Company, and the loss sustained by the father by reason of those injuries. The principal defense interposed to the action was that the boy was a permanent employe of the defendants, within the meaning of the Employers’ Liability act, and that, consequently, his only remedy against his employers was that provided by the statute referred to. On the other hand, the plaintiffs contended that the employment of the boy was casual, and that, therefore, the statute did not apply. The court, after hearing testimony, concluded that the employment was not casual, and that, consequently, the sole right of action resting in the plaintiffs was that provided by the statute. Holding this view, the judge directed the jury to return a verdict of no cause of action, and from the judgment entered upon the directed verdict the plaintiffs have appealed.

The situation disclosed by the proofs was this: The boy’s regular employment was with a corporation known as the Webb Wire Works, in New Brunswick. On the 25th of July, 1924, he was informed by the manager of this corporation that its factory would be shut down on the next day, which was Saturday. On that day he went with a friend to defendants’ place of business to see another friend, who was employed there, and Segal, one of the defendants, seeing him, told him that the bottling company was short of help, and asked him to assist in the work of delivering bottles of soda water. This the boy did, and was paid $1.50 for his services. On the following Friday he was notified by the manager of the Webb Wire Works that its factory would again be closed on the next day, and on that day he went back to the defendants’ factory, not pursuant to any arrangement with them, but with the idea that perhaps he might be employed again for that day. He saw Segal, and was told that the company was still short of boys, and was asked to go for a ride to South Eiver and help deliver bottles of mineral water there. Patsy agreed to do this, and he and two other boys jumped on the back of the defendants’ truck for the purpose of helping unload the cases and deliver them to customers along the route. While engaged in doing this he fell from the truck and was hurt. So far as the case shows, he never received any compensation for the work that he did on this latter day. This is his own story told upon the witness-stand, and, if it be true, then his employment was casual, within the meaning of the Employers’ Liability act, and he was not entitled to the benefit of that statute in enforcing his claim for compensation against the defendants.

It may be conceded that the testimony of witnesses called by the defense supports the conclusion that the employment was not casual; but, in this situation of the proofs, it was plainly for the jury, and not for the court, to determine the question of the nature of the employment, and there was error in directing a verdict for the defendants.

The judgment under review will be reversed.


text:
    JOHN N. LLOYD v. ABRAM WEINSTOCK.
    Decided November 16, 1926.
    Sale of Real Estate—Recovery of Deposit—Defendant was Unable to Give Marketable Title—Held, That Upon the Facts Judgment For Plaintiff For Return of Deposit Will be Affirmed.
    On appeal from the Essex Circuit Court.
    Before Gummeke, Chief Justice, and Justices Tkenchakd and Mintukst.

      Eor the appellant, Carl Olsan.

    Eor the respondent, William P. Hurley.

   Pee Cueiam.

This action was brought by the plaintiff to recover the amount of a deposit of,$1,000 made by him on account of the purchase-money of property which he had contracted to buy from the defendant. The trial resulted in the direction of a verdict in favor of the plaintiff for the amount of his deposit, with interest, and the defendant has appealed. The principal contention is that the direction of a verdict was improper.

An examination of the state of the case discloses the following situation: The defendant, Weinstock, desired to sell a piece of property located on Hawthorne avenue, in the city of Newark, and he employed one Hathaway as his agent to obtain .a purchaser for the same, the price being fixed at $11,000. Hathaway entered into negotiations with the plaintiff, with the result that the latter agreed to buy the property for the sum named, and he paid Hathaway $1,000 on account of the purchase price, and the latter turned it over to Weinstock, the defendant. When the time came for the execution of the contract and the delivery of the conveyance, a deed of general warranty, with a covenant against encumbrances, was tendered to the plaintiff, and this he refused to accept, upon the ground that there were outstanding interests in, and encumbrances upon, the property, which rendered the title thereto unmarketable. The facts upon which he based this claim were undisputed, and demonstrated that he was right in his contention. At the close of the trial the Circuit judge directed a verdict in favor of the plaintiff, as has already been stated, for the amount of his deposit of $1,000 and interest.

We think, upon the facts recited, that the trial judge was justified in doing so. Weinstock being unable to perform the contract for the sale of the property made for him by Hathaway, as his agent, by conveying a good and marketable title thereto, the plaintiff was entitled to a return of the money paid by him on account of the purchase price.

It is further argued that the complaint does not contain an averment of the existence of several of the material facts herein recited, and that, therefore, the verdict was directed upon a cause of action not embraced in the pleadings. This, however, affords no reason for a reversal of the judgment. Section 27 of the Practice act of 1912 provides that “no judgment shall be reversed on the ground of misdirection or the improper admission or exclusion of evidence, or for error as to matter of pleading or procedure, unless, after examination of the whole case, it shall appear that the error injuriously affected the substantial rights of a party.” Moreover, at the conclusion of the evidence submitted the trial court directed that the complaint be amended so as to set out the real cause of action, which had been the subject of the trial before the jury, and the propriety of this judicial action is not challenged by the appellant.

Por the reasons stated, the judgment under review will be affirmed, with costs to the respondent.


text:
    FRANK CONSENTINO AND ENRICO QUINTIERI v. SAMUE GELDSEILER.
    Decided November 16, 1926.
    Negligence—Injury to Passengers in Automobile in Collision With Another Automobile—Defendant Alleged Contributory Negligence on Part of Driver of Car in Which Plaintiffs Were—Held, That it is Immaterial Whether the Driver of the Car in Which Plaintiffs Were Riding was Negligent or Not—Awards Examined and Held Not Excessive.
    On defendant’s rule to show cause.
    Before Gummebe, Chief Justice, and Justices Teenchaed and Mintuen.

      Eor the rule, Palmer Bradner.

      Gonlra, Harry Kalisch.

   Per Curiam.

This suit arose out of an accident that occurred on the afternoon of March 14th, 1935, at the intersection of Market and Mill streets, in the city of Paterson. The plaintiffs, Consentino and Quintieri, were passengers in an automobile owned and driven by one Antennucci. This car was traveling south on Mill street toward Market street. As it was crossing the intersection, the defendant’s ear, which was being driven west on Market street, collided with that in which the plaintiffs were riding, and, as a result of the collision, the plaintiffs received the injuries to recover for which the present suit was instituted. The trial resulted in verdicts for the plaintiffs, the jury awarding Consentino $3,500 and Quintieri $7,500.

The only grounds upon which we are asked to set aside these verdicts is that they are contrary to the weight of the evidence, and that the awards to the two plaintiffs are each of them excessive.

As to the first contention: Our examination of the testimony satisfies us that the jury was entirely justified in finding that the collision was due, partly, at least, to the carelessness of the defendant. This being so, it is immaterial whether the driver of the car in which the plaintiffs were riding as passengers was also negligent or not.

As to the amount of the verdict in favor of Consentino: As a result of his injuries he lost in wages, according to his own testimony, almost $1,000 and incurred expenses in the shape of doctors’ bills amounting to $70. There was no evidence to the contrary. The jury was justified in finding that he had received a fracture of the left fibula, and an injury to the knee joint, which produced chronic arthritis. In view of these facts, this verdict seems to us to be very moderate.

The verdict in favor of Quintieri was $7,500, as has already been stated. He also lost in wages, according to the testimony given by Mm, about $1,000, and Ms doctors’ bills were over $100. According to the testimony of medical experts called in Ms behalf, he sustained a fracture of the spine in the lumbar region, and this fracture affected injuriously the muscles of the leg and the nerves leading from the spinal column through the broken portion thereof and down through the leg. These experts also testified that the injury was permanent. The jury evidently accepted this evidence, rather than contradictory testimony given by experts called on behalf of the defendant, and this it, of course, had a right to do. We cannot say that $6,400 was an excessive award for injuries of that character and for the pain and suffering resulting therefrom.

The rule to show cause will be discharged.


author: Tkenohard, J.

text:
    STATE OF NEW JERSEY, RESPONDENT, v. FRANCIS MURPHY, PROSECUTOR.
    Argued November 4, 1926
    Decided November 16, 1926.
    Motor Vehicles—Drunken Drivers—Defendant Alleges That He Committed No Offense in the Presence of the Officer Who Arrested Him—Defendant Admitted to Officer That He was Driving Car When it Collided With Another—Officer Found Him in a Staggering Condition of Intoxication—Held, That This Brought Defendant Within the Term “Operation,” as Used in the Act—Judgment Affirmed.
    On certiorari, &c.
    Before Justice Teenchaed, sitting for the Supreme Court by consent.
    For the prosecutor, John U'. Kafes.

    For the respondent, Romulus P. Rimo.

   Memorandum by

Tkenohard, J.

The state of the case laid before me shows the following matters of fact: That on November 24th, 1925, at about eleven-thirty p. m., Erancis Murphy was operating an automobile on a public highway in the city of Trenton while under the influence of intoxicating liquor; that he was arrested by a police officer and taken to the police station; that early the next morning the officer made a formal complaint against him before the police justice, charging the above-stated offense in violation of subdivision 3 of section 14 of the Motor Yehiele act (Pamph. L. 1921, p. 665), as amended, and a warrant was then issued thereon pursuant to the provisions of the act, which warrant bears over the signature of the officer the following return: “I herewith return the within warrant before A. S. Brennan, police justice, with the defendant in custody, this'25th day of November, 1925, at eight-thirty a. m.;” that the defendant was thereupon arraigned before the police justice and pleaded not guilty, and, on motion of his attorney, the trial of the complaint was adjourned and set down for hearing on December 3d, 1925; that at that hearing he was convicted of the offense charged and sentenced to the common jail of Mercer county for a period of thirty days; that thereupon defendant took an appeal to the Mercer County Court of Common Pleas, and upon the trial thereof de novo, upon a consideration of the same evidence heard by the police justice, he was convicted on such appeal and sentenced to the common jail for a period of thirty days and to pay the costs.

This writ of certiorari sued out by Murphy brings up for review the latter conviction and sentence.

The state of the case contains no formal reasons for setting aside such conviction. It does disclose, however, that at both trials the defendant, among other things, contended that he committed no offense in the presence of the police officer who arrested him, and, therefore, his arrest without a warrant was illegal and the court without jurisdiction of his person. At the argument before me both counsel agreed that the sole question submitted for my determination was this: Was the original arrest illegal, and if it was, does that fact alone render the conviction of the defendant unlawful ?

I think the legality of the original arrest under the particular circumstances disclosed in the present case is not open to question in this court in view of the decision in State v. Ray, 4 N. J. Mis. R. 493.

The evidence in the present case showed clearly that when originally arrested the defendant was intoxicated. Moreover, the officer who made the arrest further testified (and was uncontradicted) as follows:

“Q. Did you see this defendant?
“A. Yes.
“Q. where?
“A. 15 North Willow street.
“Q. Under what circumstances did you see him?
“A. Well, we seen two cars together. They had been together and broke loose, and this man here came walking around back of the car.
“Q. Do you mean this man?
“A. Mr. Murphy.
“Q. The defendant?
"A. Yes, sir.
“Q. Then as he walked from the back of the car did you notice his walk?
"A. Yes, I did.
“Q. How did he walk?
"A. He staggered verjr badly.
“Q. And did you have a conversation with him?
“A. Yes. I said was he driving the car, and he says, ‘yes, I was: "

The present case is therefore much like State v. Bay, supra, and I think is controlled by it. In the Ray case one of the contentions was that the proceedings were instituted by an illegal arrest and were therefore void. In disposing of this point the court said: “This point is based upon the fact that the officer who arrested Ray did not see Ray driving the ear at the time the accident occurred. Prom this it is argued that the arrest was hot authorized by the Motor Yehicle act,' which authorizes an arrest without a warrant only by an officer in whose presence the law has been violated, or on a sworn complaint. We think there are two answers to this contention. The first is that Bay admitted to the officer that he had been driving the car when he said ‘I hit the car.’ The second is that Ray got in the car and started the engine when the officer was present. Ray was intoxicated. This, we think, was an act which is included within the term ‘operation,’ which is the word used in the Motor Yehicle act. The arrest was proper because in the presence of the officer Ray was operating a car when intoxicated. There is also in this connection another ground which warra/nted the original arrest. This was the intoxication of Bay. It was lawful to have arrested him upon this ground. When taken to the recorder’s office a complaint was made by the owner of the car which Ray had struck. The proceedings from this point were in accordance with the portion of the statute which provides for an arrest upon a sworn complaint.”

It will be seen that case is exactly like the present case in. respect to admission of driving the car and condition of intoxication; under the authority of that case the original arrest in the present case was lawful. And, as in the Ray case, the proceedings from this point were in accordance with the provisions of the statute which provides for an arrest upon a sworn complaint.

Having thus found that the original arrest was lawful, it is unnecessary for me to consider the remaining question presented.

The conviction and judgment brought up for review will he affirmed, with costs.


text:
    JESSIE C. BARLOW, PLAINTIFF, v. HARRY H. SELFRIDGE, DEFENDANT.
    Decided November 19, 1926.
    Husband and Wife—Alienation of Wife’s Affections—Defendant Pleaded Res Adjudicata, Alleging That Wife Had Obtained a Divorce on Ground of Desertion in a Suit in Which Plaintiff Had a Cross-Petition Charging Adultery With Defendant —Held, That if Separation Had Been Caused by the Wrongful Conduct of Defendant, He Must Respond in Damages Even Though the Decree in Chancery Had Found the Plaintiff Guilty of Desertion—In Present Case it Appears That For a Long Period of Years Plaintiff and Wife Were Not Living in Harmony, That She Had Caused His Arrest, That She Had Brought a Separation Suit in New York, and That For Two Years, From 1917 to 1919, Plaintiff Did Not Live With, Nor Support, Wife—Held, Verdict For Plaintiff was Against Clear Weight of Evidence.
    On defendant’s rule to show cause.
    Before Gtjmmebe, Chief Justice, and Justices Kalisch and Campbell.
    Eox the rule, Cecil H. McMahon (Harry Lane, of counsel).
    Contra, Thomas H. Brown.

   Per Curiam.

The plaintiff obtained a verdict against the defendant in the Hudson Circuit for $5,000. The plaintiff’s complaint contains two counts, the first is for alienation of his wif&’s affections and the second for criminal conversation. At the trial there was a nonsuit directed on the second count, and the cause was submitted to the jury on the first count. The first count, after reciting that the plaintiff and his wife lived happily together until about the year 1920, alleges that the defendant, Selfridge, “contriving and maliciously intending to aggrieve and injure the plaintiff and to deprive him of the comfort, company and assistance of his said wife, and to alienate and destroy her affection for him, did on divers dates and places wrongfully, injuriously, maliciously and with intent, ' as aforesaid, entice, instigate, persuade, did and procure the said Lillian Barlow, wife of the plaintiff, unlawfully and against the will of the plaintiff, to desert him and depart, absent and separate herself from him, and to continue so absent, separate and apart from him against his consent,” and that “by means of which malicious enticement, instigation, procurement, aid and action of the defendant, the said Lillian Barlow, wife of the plaintiff, afterwards, against the plaintiff’s consent and secretly him, her said husband, the plaintiff, and has continued absent and separate from him.”

To this count the defendant, in an amended answer, pleaded res adjudicada, in that on October 2d, 1924, the plaintiff’s wife, Lillian Barlow, filed her petition for divorce against the plaintiff, charging him with desertion of her on July 3d, 1920, and that “ever since which time and for more than two years last past” he “has willfully, continually and obstinately deserted” her. To his wife’s petition the defendant filed an answer denying the allegation of desertion on his part alleged therein, and by way of cross-petition exhibited against his wife, charged her with having committed adultery with the defendant at 42 N. Grove street, East Orange, New Jersey, and divers other places within New Jersey, and prayed for a dissolution of the marriage, &c. On December 27th, 1924, the plaintiff’s wife filed a reply denying the allegation set forth in the plaintiff’s cross-petition. The defendant intervened in this suit, on January 5th, 1925, and in his answer, to the plaintiff’s cross-petition filed in the divorce suit, denied the allegation therein' that he, the defendant, had committed adultery at any time with the plaintiff’s wife. The issues of desertion and adultery raised by the pleadings came on for trial before Vice-Chancellor Fielder, and after a hearing he .granted the plaintiff’s wife her petition for divorce upon the ground of willful, continued, obstinate desertion on. part of the plaintiff, and dismissed the plaintiff’s cross-petition charging his wife with adultery with the defendant.

There were motions for a nonsuit and for a directed verdict on behalf of the defendant. These motions were denied, and we think properly so.

It is argued on behalf of the defendant that the decree of the Court of Chancery on the question of desertion was res adjudicata. Undoubtedly, this would be so if the litigation was one between the parties to that suit. The defendant was not made a party to the wife’s petition for divorce on the ground of desertion, and, of course, could not be made such. He was, however, an intervening party to the plaintiff’s cross-petition which charged the plaintiff’s wife with having committed adultery with the defendant, and on this issue the decree of the Court of Chancery is res adjudicata. But this did not preclude the plaintiff from showing that the defendant instigated the separation of the former’s wife through the machinations of the defendant. We think, with the trial judge, that if the separation of the husband and wife was caused by the wrongful conduct of the defendant—• that is, to bring about the result which followed, namely, the separation of husband and wife, then, the defendant must respond in damages to the husband, even though the decree in the Court of Chancery found the husband guilty of willful, continued and obstinate desertion. There is no inconsistency in this view, for it is not inconceivable that a wife might be induced to act in such a way as to cause her husband to leave her, though, in law, it would not be a sufficient excuse for his doing so. It is readily to be observed that such circumstance, however, would have an important bearing on the measure of damages, the husband is entitled to recover for having the affections of his wife alienated from him. In the present case it appears that for a long period of years the plaintiff and his wife were not living in harmony with each other; that she had caused his arrest; that in 1912 she brought a suit for separation against him in the State of New York, and that for a period of two years, from 1917 to 1919, the plaintiff did not live with his wife nor did he contribute to her support, &c. Notwithstanding this proof, which was uncontroverted, the jury awarded the plaintiff $5,000 damages. In view of the evidence in the cause and the amount of damages awarded, the verdict appears to be against the clear weight of the evidence.

The rule -to show cause is made absolute, and a new trial ordered. •


text:
    FANNIE TRAUGOTT, RESPONDENT, v. JOSEPH SCHMEDLEN AND WILLIAM STERRANNA, APPELLANTS.
    Decided November 19, 1926.
    Negligence—Injury to Pedestrian, a Woman Seventy-three Years Old, by an Automobile at a Street Crossing—Verdict of $3,000 Held Not Excessive, That the Decision was Not Against Weight of Evidence, That There was Evidence to go to the Jury to Justify the Decision That There was Negligence and No Contributory. Negligence.
    On defendants’ rule to show cause.
    Before Gummere, Chief Justice, and Justices Kalisch and Campbell.
    For the rule, Frank Q. Turner.

      Oontra, Tiffany, Brugler & Wittreich (J. Raymond Tiffany, of counsel).
   Per Curiam.

The plaintiff obtained a verdict against the defendants, Joseph Schmedlen and William Sterranna, in the Hudson Circuit, for the sum of $3,000. The matter comes before us on the defendants’ rule to show cause why a new trial should not be granted.'

The four reasons relied on and argued in the brief of defendants’ counsel for setting the verdict aside are—(1) The verdict is grossly excessive; (2) the verdict is against the weight of the evidence; (3) the plaintiff was guilty of contributory negligence; (4) there was no negligence on part of the defendant. The second, third and fourth reasons will be first taken up for consideration. The plaintiff, aged seventy-three years, at about eight-forty on the night of April 25th, 1925, while in the act of crossing from the westerly side of Central avenue to the southeast corner of Central avenue and Hutton street, in Jersey City, and was within about twenty feet of her destination, when she was hit by the defendant (Sterranna’s) car and severely injured. There was testimony to the effect that she looked “up and down the street” before she started to cross and saw no car coming. No signal of the approach of the car was given. The defense was that the plaintiff ran into the mud guard of the car. A pure factual question was presented. There was proof from which the jury was warranted in finding that the injury to the plaintiff resulted solely from the negligent operation of the ear by the defendant’s driver. We cannot say that such a finding was against the clear weight of the evidence. It is said that the verdict is grossly excessive. We do not think it is. The plaintiff sustained a fracture of the left femur at the knee; a fracture of the left condial of the middle third of the left arm. She was six and a half weeks in the hospital. She was in bed six weeks. When she came out of the hospital she was examined by Dr. White, who testified that she had “general stiffness and atrophy of the muscles.” At the time of the trial, six months after the happening of the accident, the plaintiff testified that she could not raise her arm so that she could put it back of her head; that the injury to her foot disabled her from walking straight; that before the accident she did housework for others and was very active; that she cooked for different people, for which she received compensation, and that since her injury she is unable to do work on account of the injured arm. Her injuries were very painful. We cannot say therefore that the verdict is so excessive that it evinces prejudice, mistake or passion on part of the jury.

The rule to show cause is discharged, with costs.