text:
    JACOB TINNIRELLO. AS ADMINISTRATOR AD PROSEQUENDUM OF THE ESTATE OF ANTHONY TINNIRELLO, DECEASED, PLAINTIFF, v. ALBERT I. LODWICK, DEFENDANT.
    Submitted May 5, 1931
    Decided October 5, 1931.
    Before Justices Campbell, Lloyd and Bodine.
    For the plaintiff, Joseph H. Oaudielle and James A. Major.

    For the defendant, Reginald V. Spell and Reynier J. Woriendyhe, Jr.

   Pee Cueiam.

This suit was brought under the Death act. The action resulted from a cross-road automobile accident on September 29th, 1929, in Paterson, in which Anthony Tinnirello was killed. He was driving a Eord south on River Drive, having just left the police station. The defendant was driving a larger and heavier car west on Market street. The streets cross one another at right angles. The accident occurred about eleven o’clock at night.

On this rule it is argued that the testimony did not justify a verdict against the defendant.

After the administrator had made proof of matters within his knowledge, two police officers were called who had been talking to the deceased but shortly before the occurrence. They saw him drive slowly off in his car with the lights lit and stop at the intersection for traffic. After he had started across Market street they heard the hum of something like an airplane and saw the ears collide. The defendant’s car struck the car deceased was riding in about opposite the driver’s seat and threw the car against a police booth some distance away. The impact was so great that the booth was knocked over and the deceased was later picked up from under the wheels of the defendant’s car, which landed up against the curb some distance from the first impact. There was testimony that the defendant’s car was'being driven at between sixty or sixty-five miles an hour.

Besides this positive evidence there was direct corroboration of many of the important details in the testimony of a boy riding with the deceased and a garage man who had a place of business in the neighborhood. All the plaintiff’s witnesses seem clear as to placement of the cars after the collision, the position of the deceased’s body and the high speed of defendant’s car shortly before the accident and the fact that the lights on the dead boy’s Eord were lit.

The defendant admits a speed of thirty miles an hour, but testified that he did not see the other car until he was four feet away because it had no lights. A bystander, called by the defendant, places the speed of defendant’s car at forty-eight to fifty miles an hour and expressed some doubt, not evidential, as to the lights upon the car of the deceased boy.

An attempt was made to discredit the police officers’ testimony by alleged contradictory statements to an investigator named Barnes. A proper foundation was, of course, laid for this testimony.

There was an abundance of testimony to support the verdict of the jury. Any other finding would have been against the clear weight of the evidence.

The rule will be discharged, with costs.


source: Caselaw Access Project

author: Pee Cueiam.

license: Public Domain

text:
    THEODORE MULLEN, PLAINTIFF-RESPONDENT, v. CENTRAL RAILROAD COMPANY OF NEW JERSEY (A CORPORATION OF NEW JERSEY), DEFENDANT-APPELLANT.
    Submitted May 15, 1931
    Decided October 5, 1931.
    Before Justices Campbell, Lloyd and Boduste.
    For the plaintiff-respondent, Francis A. Gordon.

    For the defendant-appellant, William A. BarJcalow (DeVoe Tomlinson, of counsel).
   Pee Cueiam.

This is an appeal from a judgment for $15,000 in favor of the plaintiff in an action brought under the Federal Employers’ Liability act.

The plaintiff, Theodore Mullen, had been employed by the Central railroad for about eighteen years. At the time of the accident, he resided in Elizabeth and was employed as netting inspector in night work at the Communipaw roundhouse. The railroad furnished him a pass which he used for sometime past in commuting from Elizabeth to Jersey City. He had formerly been a boilermaker. There is no dispute that his work was of interstate character—some of the engines he inspected being used in interstate commerce and some in intrastate commerce. On the night of his injury, plaintiff rode the ten-ten p. it. train from Elizabeth to Jersey City, but was not obliged to check in at the Communipaw yard until eleven fifty-nine p. it.

For several years, two so-called deadhead coaches for employes were attached to the ten-ten train. Mullen, and other employes, on boarding the train went directly into one of these coaches. If by any chance, the coach was locked it was opened by a railroad trainman and usually a pass inspector examined passes. Other roundhouse night shift employes boarded the train wherever it made station stops. When the train arrived at Jersey City the train crew would go through the deadhead coaches, but would not disturb the employes occupying the same. Twenty minutes or a half hour later the same engine that brought the train into Jersey City would push it into the yards. The brakeman would remain on the train but the conductor had already reported in. A drill engine would then hook on to the train. Usually there was attached to the drill several cars. The train men would then go back to the terminal and the train made up of the deadhead coaches and the cars attached to the drill engine would be manned by a new crew. This train, or sometipie before the accident and on the night in question, was pulled on to a drill track and moved on down the yard. When it reached the Communipaw bridge embankment, it would stop and the workmen employed in the night shift at the Communipaw roundhouse would alight and go up over the embankment to their place of work. The course pursued was of long standing and well known to the railroad employes. No fare was taken nor were passes examined on this ride. The crew on the drill engine would, however, bid the workers, as they got off, good-night, and appear to have known all about the occupation of.the deadhead coaches by the plaintiff and other employes. The proofs tend to show that this was the method employed to carry the men to their work.

On the night in question, the train had come to its usual stop at the embankment. Mullen found a vestibule door closed and was passing between two cars in order to alight, when there was a sudden movement of the train. The cars, where he was passing, separated and the plaintiff was thrown under the wheels and his right leg cut off. The train was, of course, always broken on the drill track, but it had, before this occurrence, usually lain at this point five or ten minutes so that the employes could get off. However, instances were cited where the train had been almost immediately cut. The facts proved supported the jury finding that the drill crew did not exercise the care owed to Mullen.

In Matthison v. Payne, 98 N. J. L. 87; affirmed, 99 Id, 285, a roundhouse employe rode on a work train which carried employes to the vicinity of the roundhouse. On the night ho was injured, the train discharged him at a point about a mile from the roundhouse because an engineer had been left behind, and the train was ordered back for him. At this point there happened to be another engine. With the consent of the engineer, the fireman started this engine in order to take the plaintiff to a point nearer the roundhouse. While being so carried, he was injured. It was said: “fie was entitled to rely on the custom established by the defendant, that he would be conveyed to his work—that is, to Central Crossing. He was also warranted in relying upon the common practice open to his observation, of firemen operating the trains in the absence of the engineers, which practice would be tantamount to holding them out as acting within the scope of their employment.” It is apparent that the decision rested upon the proof of a custom to carry employes to their place of work, although the means used on the day of the accident was not the regular train, but an engine run by the fireman under instructions from the engineer to carry the plaintiff to a point nearer his work.

In Symonski v. Central Railroad Co., 102 N. J. L. 271; affirmed, 103 Id. 508, an employe, furnished with transportation, was on his way to Bayonne station to take a train to his place of work. He was injured while taking a short cut across the track to the station. There was proof of custom so to do. The court said: “There was proof that the plaintiff and other employes had taken the route he took to reach the station, and that this was a common practice covering a period of three or four j^ears. The plaintiff was entitled to ■take any one of the defendant’s passenger trains from Bayonne, stopping at Elizabethport, without payment of fare. There was no proof or intimation that the defendant company ever exercised any control over any of its employes as to their place of residence. In the absence of proof to the contrary, it will be presumed that the choice of residence was left to them. While it is true that the defendant company permitted its emplo3res to be conveyed to and from its shops at Elizabethport by its trains without payment of fare, we think this circumstance is of no vital importance, since it does not appear that the defendant exercised any control over the plaintiff’s choice of place of residence, or that the defendant undertook to control or direct the plaintiff as to the means he should use to reach his place of emplo3unent. The circumstance that he was allowed to ride, without payment of fare, to and from Elizabethport, is of no more significance that if he had been furnished by his employer with the money to pay for his daily trips to and from his work.”

There is no doubt that if Symonski had boarded the train and been negligently injured Avhile on the train or alighting therefrom the Matthison ease would have governed and there would have been recovery. In the present case, the workman ■was injured while alighting from the car provided or used for a long time for the purpose of taking him to work. He had not left the car at the Jersey City terminal because of the custom to ride to the embankment near the roundhouse. The mere fact that another train was provided for the purpose could make no difference or relieve the railroad from responsibility which it had incurred by permissive use of the means employed.

When Mullen boarded, the work train at Elizabeth he was. using the means provided by the employer to reach the particular point at which he was to commence work and while he rode in the cars provided for that purpose and was alighting therefrom in the usual manner and at the usual place the employer was under a duty to refrain from negligent injury.. It is not to be supposed that the case of Symonski v. Central Railroad Co., 102 N. J. L. 271, goes beyond the facts there stated and which differ materially from the facts proved in this case and in Matthison v. Payne, supra.

The other points argued upon this appeal need no special mention. The issues raised by the pleadings and proofs were clearly submitted to the jury. The trial judge did leave it to. the jury to inquire whether the plaintiff acted reasonably in accepting the mode of transportation proved, but this., under the proofs, was not harmful.

The judgment will be affirmed, with costs.


author: Memorandum by Parker, J.

text:
    Morris County Circuit Court.
    LEWIS C. VAN NEST v. ROBERT NAUMAN.
    Decided May 12, 1931.
    Before Justice Parker.
    Por the plaintiff, Lehlbach, Johnson & Ormond.

    Por the defendant, Fast & Fast.

   Memorandum by Parker, J.

On May 12th, 1931, being the opening day of the current term, this motion was presented by counsel in the absence of Judge Lawrence and, for their convenience, I consented to hear and determine it.

The application is to stay proceedings on a recognizance of bail given by the defendant Nauman as surety for one Honixfeld, also in the Circuit Court. Por the plaintiff it is objected that the application comes too late, because by section 77 of the Practice act of 1903 (Comp. Stat., p. 4075) the defendant must be rendered in discharge of his bail after judgment either within twenty days after the return day of the scire facias against the bail or within twenty days after the return day of the process in an action on the recognizance of bail and not after, unless for good, cause further time be granted by the court or a judge.

The dates are as follows: A judgment against Honixfeld was entered on March 4th, 1931; capias ad satisfaciendum issued March 21st, 1931, and was duly lodged with the sheriff, and on March 28th, after seven days (four days being necessary under the old rule) the sheriff returned the defendant not found. On March 30th summons was issued in the present action against the surety and served on the 31st. On April 13th, the defendant Honixfeld in the original suit, gave notice of appeal and on the same day served a notice on the plaintiff of an application to render the defendant in discharge of his bail, such application to be made to the Circuit Court on May 12th. This, it will be observed, is forty-three days after the issue of summons against the bail and forty-two days after it was served; and the plaintiff very properly invokes the twenty days’ rule laid down in the statute.

The only difficulty in the case arises out of the fact that in 1912 the Practice act was changed by the abolition of return days in the process of summons, and the question therefore arises as to how the twenty days’ rule is to be applied, the plaintiff claiming that the date when the summons is actually served should be considered as equivalent to the return day; and the defendant urging that because by the old English law an interval of at least fifteen days between the teste and return of a summons was required, that rule should now be applied, and if applied, it will be found that the application is still in time. Secondly, the defendant argues that it is the date of notice of the application and not of the application itself that is to control, and as that notice was given within twenty days after the service of the summons, it is in time for that reason also.

I think both points are without legal merit. As to the notice being equivalent to the application, such a rule has no foundation in the practice and was expressly repudiated in the per curiam of the Supreme Court in Gallo v. Moffett, 8 N. J. Mis. R. 39. I think it unnecessary to search the books for other authorities.

With reference to the fifteen days’ rule and on the assumption that the critical date is the date of the actual application, I fail to see how even that rule, if conceded, will save the situation, because the sum of twenty days and fifteen days is thirty-five and the actual interval, as already noted, is forty-two days. I do not wish to be understood as concurring in the fifteen days’ rule. It is true that in 3 Blades. 275, it is laid down that a writ should be made returnable at the distance of at least fifteen days from the date that the defendant may have time to come up to Westminster, even from the most remote parts of the kingdom; and upon some day in one of the four terms, in which the court sits for the despatch of business. The reason given for the fifteen days is that an ordinary day’s journey was considered to be twenty miles, and three hundred miles was the limit of distance to be covered by the defendant in attending court. These writs were also made returnable to a definite term, as indicated by Blackstone, and such, as I understand it, was the practice in this state until the legislature passed what is now section 46 of the Practice act of 1903, providing in part that courts of law shall always, except on Sunday, be open for the return of all process in civil actions, &c. As to the fifteen days’ rule the legislature modernized that by providing that where service is made at the place of residence, it should be served at least six days before its return, and if served on the defendant in person, at least two days before return. Section 52. Section 46, which was section 49 of the Practice act in the Revision of 1877, did not cover the case of a municipal corporation and this led the Supreme Court to hold that in the case of a municipal corporation the only thing to do was follow the fifteen days’ common law rule as laid down on page 107 of Tidd’s Practice. This was the holding in McNeal v. Gloucester City, 51 N. J. L. 445, and reiterated in Cooper v. Cape May Point, 67 Id. 437. But with respect to individuals, it is sufficient to quote the remarks of the late Mr. Justice Depue in Logan v. Lawshe, 62 Id. 567, in which he points out that the controlling factor in making a summons returnable was the length of time that was required to elapse between the service of the summons and the return day, and on page 570 he goes on to say: “The reason of this common law rule of practice having vanished, there is no ground upon which this court should be controlled by the dry husk of an obsolete precedent. The rule was superseded by the statutes which regulate the service and return of writs.” These cases and the case of McCracken v. Richardson, 46 Id. 50, are the authorities cited in the footnote to Mr. Harris’ book on New Jersey Practice and Procedure as authority for the general proposition that fifteen daysjs the proper legal interval between the teste and return of a summons. McCracken v. Richardson relates merely to the enlargement of the return day in case the sheriff is unable to make service at a proper interval before the original return day; the McNeal and Cooper cases, as is obvious from what has been said, have no application to the suit against an individual and Logan v. Lawshe is precisely to the contrary.

In the present case if the sheriff could make personal service the summons could with propriety have been made returnable within three days from its date; or if service had to be made at the place of abode, then seven days would cover the necessary interval between the date and return. Whether either of these periods ought to be considered as the starting point of the running of the twenty days mentioned in section 77 of the Practice act, is not necessary to decide; for, as has been said, even if the fifteen days’ rule were adopted, the application would be out of time.

The result is that the defendant is not entitled to a stay of the suit on the recognizance. The proviso of section 77 contains the additional clause “unless for good cause further time be granted by the court or a judge;” and it is suggested that inasmuch as defendant’s counsel considered, mistakenly as I have held, that the date of giving notice of the application was equivalent to the application, this time ought to be extended. I am unwilling to deal with this phase of the situation, because both cases from their inception have been under the control of Judge Lawrence who is necessarily familiar with the details, and therefore I think it better for me to deal only with the question of law that has just been decided, and not interfere with his discretionary control of an extension of time if, indeed, the statute can be construed so as to permit of an extension being granted after the original time has expired.

The application for extension is denied, with costs; but without prejudice to a similar application to Judge Lawrence based upon such discretionary powers as he may have under section 77 of the Practice act.


author: Pee Cubiam.

text:
    ANNA E. BOWEN AND SARAH E. EATON, PLAINTIFFS-RESPONDENTS, v. WILLIAM D. HENDRICKS, DEFENDANT-PROSECUTOR.
    Submitted May 5, 1931
    Decided October 5, 1931.
    Before Justices Campbell, Lloyd and Bodine.
    Eor the plaintiffs-respondents, Robertson & Robertson (William 1. Garrison, of counsel).
    Eor the defendant-prosecutor, Gole <£• Cole.

   Pee Cubiam.

The rule to show cause will be discharged. The plaintiffs, two sisters, had verdicts of $2,200, respectively, in a suit against the defendant, their brother, growing out of injuries sustained in an automobile accident occurring November 17th, 1929, on the Harding Highway, two miles west of Pleasantville, New Jersey.

The jury must have found, and there is evidence to support their finding, that the plaintiffs were invited by their brother to ride to Atlantic City in his automobile. The day was rainy and the road wet and slippery. While proceeding at about thirty-five miles an hour the defendant pulled suddenly to the left in order to pass a parked car. His car skidded, struck the gravel shoulder to the left of the paved surface and overturned.

The proofs seem sufficient to sustain a finding that the car was being negligently operated. The credit of the plaintiffs’ testimony, which it was sought to discredit by reason of' prior inconsistent written statements descriptive of the occurrence, was for the jury. The written statements, however,, appear to be consistent with the testimony given except in trifling details and vague conclusions.

The judgments are not excessive. Sarah E. Eaton suffered from three fractured ribs, bruises of her back, knee and hip. She also experienced a nervous breakdown of some duration. Anna E. Bowen, who gained her livelihood as a seamstress, besides severe bruises, suffered an injury toiler spine which impaired her earnings and occasioned a. good deal of pain. Both women were incapacitated for some weeks and were put to considerable expense.

The rule will be discharged, with costs.


author: Per Curiam.

text:
    HERMAN GUTJAHR AND DAISY GUTJAHR, PLAINTIFFS, v. FRANK W. LaMORTE AND JOSEPH E. COOKE, DEFENDANTS.
    Submitted May 5, 1931
    Decided October 5, 1931.
    Before Justices Campbell, Lloyd and Bodine.
    For the plaintiffs, Feeler ■& Binzler.

    For Joseph E. Cooke, Harley, Oox & Walburg (Abram A.. Lebson).
    For Frank W. LaMorte, Joseph T. Lieblich.

   Per Curiam.

The proofs in this case clearly establish that the plaintiffs were the invitees of the defendant Prank W. LaMorte. Further, they show that Mrs. LaMorte so negligently operated her husband’s car that her negligence W'as not only the proximate cause of the plaintiffs’ injuries, but also those suffered by the defendant Joseph E. Cooke, who had judgment on his counter-claim.

So far as questions dealing with the conduct of the trial .and the court’s charge are before us, by exceptions duly entered, we think there is nothing presented showing error.

We can see no error, if it be before us, in an amendment •of Cooke’s answer made pursuant to Supreme Court rule No. 24. The discontinuance of an action brought by Cooke, in the Bergen Common Pleas, was certainly within his control, ■and the action besides was proper as tending to an orderly disposition of the whole matter.

The plaintiff Herman Gutjahr’s verdict of $22,500 seems to us excessive. The proofs show that he expended about $1,000 for medical and hospital expenses. His injuries were painful and there will be a permanent impairment of the motion of his head. He suffered, however, no diminution in his earning capacity. We think that a reduction of the verdict to $15,000 would be somewhat more in accordance with verdicts recovered in other similar cases. Therefore, unless a consent be entered to a reduction of the judgment to the amount indicated, the rule will be made absolute. However, if the consent is entered the rule will be discharged.


author: Pee Curiam.

text:
    JOHN LOCCISANO v. EDWARD H. FELTUS.
    Decided October 6, 1931.

      Before Gummere, Chief Justice, and Justices Teen-chard and Lloyd.
    Eor the rule, Heine <& Laird.

      Contra, Morris G. Fredman and Edward A. MarTcley.

   Pee Curiam.

The plaintiff brought this suit to recover damages for personal injuries sustained by him in July, 1928, when an automobile of the defendant collided with one in which the plaintiff was riding as a passenger at the intersection of two public highways in Englewood. The trial resulted in a verdict, in favor of the plaintiff, the jury awarding him $15,000. The-grounds upon which we are asked to make the rule absolute are that the verdict is against the weight of the evidence and that it is excessive. The proofs showed that the-plaintiff was working for one Prank Terranova and was returning from work to his home in a truck owned by his-employer and driven by the latter. The truck was traveling eastward on Liberty road. As it reached the intersection of' that road with Knickerbocker road it was truck by the car of the defendant which was traveling in a northerly direction on that road. According to the testimony submitted on the-part of the plaintiff, as the truck in which he" was riding-came to the intersection the defendant’s car was one hundred and fifty to two hundred feet south of the intersection; thatthe truck thereupon proceeded across Knickerbocker road,, and when it had almost reached the further side thereof,, the collision occurred. The testimony offered by the defendant was to the effect that as his car reached the intersection he observed that in which the plaintiff was riding a considerable distance away and to his left, and knowing-that he had the right of way and also that he had reached the-intersection first, he assumed that the driver of the vehicle-in which the plaintiff was riding would conform to the rules-of the road and would grant him the right of way over the intersection; but that instead of doing so, the truck failed to either stop or slow down, and that when he observed these facts he attempted to pull to the right, and in doing so came in contact with the truck. Which of the two stories truthfully described the conditions under which the collision occurred was a question for the determination of the jury. They saw the witnesses, had an opportunity to observe their demeanor, and they believed those called by the plaintiff. We cannot say they were not justified in doing so, and that their finding is contrary to the weight of the evidence.

The only other contention is that the verdict is excessive. We are inclined to think that this contention also is without merit. The plaintiff at the time of the accident was about forty-four years old; he was earning $60 a week according to his own testimony and that of his employer. The accident happened on the 26th of July, 1928; the case was tried on the 11th of December, 1930, two years and four and one-half months after the happening of the accident; Ms total earnings during that period, if he had remained in a normal condition, would have been between $7,300 and $7,400. His medical expenses were $260. He suffered a fracture of the spine and a serious injury to his arm, and some slighter injury to one of his legs. As the result of these injuries he was incapacitated from work practically during all of the period from the occurrence of the accident until the trial, having earned only $50 during that time. His occupation prior to the accident was that of a tile layer, and as a result of the injuries to his back, which are permanent, his ability to carry on that work hereafter is, if not entirely destroyed, very much impaired. The award for pain and suffering and for loss of future earnings is approximately $7,500, that being the amount left after deducting wages lost prior to the trial of the case.

Eor the reasons which we have indicated we are not able to say that the verdict was so grossly excessive as to warrant our interference.

The rule to show cause will be discharged.


author: Bodine, J.

text:
    CAROLYN FAULKS, PLAINTIFF, v. THE TOWNSHIP COMMITTEE OF THE TOWNSHIP OF OCEAN, IN THE COUNTY OF MONMOUTH, AND THE BOROUGH OF INTERLAKEN, DEFENDANTS.
    Decided October 2, 1931.
    Eor the .plaintiff, John Milton, Frederic J. Faúlles and Walter D. Barlcer.

    Eor the borough of Interlaken, Geran, Matlach & Lautman.

    For Ocean township, Maurice A. Potter.

   Bodine, J.

This writ brings up for review an ordinance of Ocean township adopted November 7th, 1930, authorizing the construction of a chlorination and sewage treatment plant and ocean outfall sewer in the southerly half of Elberon avenue. Only part of the structure offends.

The borough of Interlaken, which owns jointly with Ocean township the main sewer trunk line and disposal plant, was subsequently made a party defendant and is before the court.

The plaintiff resides in Allenhurst, and has been for some years the owner of property on the northerly side of Elberon avenue immediately west of the high water line of the Atlantic ocean. She also acquired riparian rights contiguous to her property so that she now has a most advantageous location in a fashionable and exclusive resort. The property is improved with a fine and commodious dwelling with a well planted lawn.

The center of Elberon avenue is the dividing line between the borough of Allenhurst and Ocean township. The plaintiff also owns property in Ocean township and by reason thereof has in common, with other property owners, certain rights in Elberon avenue secured by early deeds and dedications.

The borough of Allenhurst in 1929 erected in Elberon avenue a plant similar to that proposed to be erected by Ocean township. The plant is unsightly; the fumes are offensive, and the plaintiff has not only found her property unsuitable for her own health and convenience but has been unable to rent it to advantage.

The plant called for in the ordinance under review provides for bringing a trunk sewer from a sedimentation basin in Edgemont avenue, Ocean township, through Ocean place to Elberon avenue where a large manhole is to be placed. Then the sewer leads down Elberon avenue to the sewage treatment plant in the highway opposite plaintiff’s property. The main plant is of concrete twenty-seven feet by ten feet, located deep beneath the surface of the street. Above the street level, however, is a concrete pump house building about thirteen feet square and ten feet high with which the plaintiff is chiefly concerned. The building as planned, aside from being an obstruction of some moment, is unsightly in the extreme and suggests in its appearance most primitive facilities of convenience.

After the sewage is treated it passes by an outfall line into the Atlantic ocean. The plant is ventilated by a so-called flag pole arrangement some seventy feet high, and there are all sorts of pumps and mechanical devices in the pump house and under ground intended to purify the sewage before it is ejected into the ocean. It is to be inferred that no flag will be desecrated by the chlorinated fumes from the vent. So the alleged flag pole is in reality nothing but a ventilating stack.

Above the level of the street are the two structures referred to which will effectively interfere with the use of Elberon avenue as a public highway.

The mere circumstance that the plaintiff has suffered an inconvenience and a financial loss because of the construction of the Allenhurst plant does not make it necessary, as the defendants contend, that more sewage should be disinfected in front of her property unless the same is done in such a way as not to interfere with her vested rights in the highway.

The plaintiff, as before indicated, has not only a standing as a property owner in Allenhurst, because injuriously affected by the contemplated action, but also as a property owner in Ocean township deprived, if the plan is consummated, of free access over the highway to the Atlantic ocean.

A complete answer to the defendants’ first contention that the plaintiff has no right to prosecute the writ is Beecher v. Newark, 64 N. J. L. 475; affirmed, 65 Id. 307; Seaman v. Perth Amboy, 97 Id. 76; affirmed, 98 Id. 174.

Elberon avenue appears on the early maps as a street fifty feet wide, extending to high water mark of the Atlantic ocean. The plaintiff, when she acquired her properties secured a vested right to pass and repass over such highway. Eurther, as a taxpayer in Ocean township, she has an interest because an expenditure such as is contemplated can hardly be made on private property, and it nowheres appears that the fee in the highway is vested in the township.

The proofs, besides maps and deeds in public record offices, clearly demonstrate that Elberon avenue for nearly a half century was dedicated as a public highway fifty feet wide extending to the Atlantic ocean. One-half of the highway' was in the borough of Allenhurst and the other half in Ocean township. Eurther, the proofs show an acceptance thereof by the municipalities concerned.

The mere circumstance that some years ago a storm washed out a portion of the highway does not deprive the plaintiff and the public of their rights in the highway or secure to the township the privilege of erecting structures which will, for all time, interfere with the use of the highway. Nor does an unauthorized bulkhead, interfering with a free passage to the ocean, alter the situation.

By section 1, article 21, of the Home Rule act (1924), (2 Cum. Supp. Comp. Stat., p. 2213), the right to construct sewers and disposal plants is granted to municipalities, 'but this is not a grant of authority to construct the same in public highways so as to deprive property owners and the traveling public of existing rights.

The right to construct sewers in public streets is not doubted. Roebling v. Trenton, &c., 58 N. J. L. 666. The right to build sewage disposal plants in the public highway seems never to have been judicially approved, probably because never in contemplation until very recently and certainly not when the streets in question were laid out. Streets were designed for public travel and while sewers, gas and water pipes not only, do not interfere with the public travel, but tend to expedite the same, large and offensive structures built above the highway have the opposite effect.

The plaintiff is entitled to have the highway adjoining her premises free, at all events, from surface obstructions which will interfere with free passage to and from the same, and this she cannot have if the plant is built.

The ordinance under review will, therefore, be set aside.


text:
    PHOEBE A. FISH, PLAINTIFF, v. ATLANTIC CITY AND SHORE RAILROAD COMPANY, DEFENDANT.
    Decided October 6, 1931.
    Before Gummere, Cttiee Justice, and Justices Teen-‘C hard and Lloyd.
    Eor the rule, Bourgeois & Coulomb.

      ■Contra, William Elmer Brown, Jr.

   Pee Cueiam.

This suit was brought by the plaintiff to recover compensation for injuries received by her while alighting from a. trolley car of the defendant company in which she was traveling as a passenger. The accident happened at the intersection of Dorset and Atlantic avenues, in the city of Vent-nor. The plaintiff's claim was that the operator of the trolley car stopped it at this corner to permit her to alight, and that as she was doing so the trolley car, suddenly and without-any warning given to her, started up and threw her to the-ground, seriously injuring her. The trial resulted in a verdict in favor of the plaintiff, the jury awarding her $10,000.

We are asked to set the verdict aside on the ground that it is contrary to the great weight of the evidence. Our consideration of the testimony satisfies us that this is the fact. Her own evidence supported her claim; namely, that the-car came to a stop and then suddenly started up again with a jerk just as she was alighting, with the result that she-was thereby thrown to the ground. Her story, however, is-entirely uncorroborated and was contradicted by the testimony of five witnesses called for the defendant. The pith of their testimony was that the conductor gave the bell signal to stop the car as it was approaching the intersection of the two streets named; that the car slowed down and was coming to a gradual stop; that the conductor, seeing the plaintiff moving toward the running board of the car and fearing-she would attempt to alight before the car came to a stop, called to her twice, saying, “lady, please wait until the car-stops;'' that notwithstanding this warning she proceeded to alight before the car actually did stop, and that her fall' was a result of this action upon her part. Two of the witnesses who testified to these facts were the conductor and the-motorman. The other three were all passengers in the car and entirely disinterested.

Reaching the conclusion that this verdict is contrary to< the great weight of the evidence, the rule to show cause will be made absolute.


text:
    ANDREW KRAUS ET UX., PLAINTIFFS, v. PETER W. FISHER, DEFENDANT.
    Decided October 6, 1931.
    Before Gummere, Chief Justice, and Justices Tren■chard and Lloyd.
    For the rule, W. Holt Apgar.

    Contra, 'William 11. D. Cox and John J. Francis.

   Per Curiam.

The plaintiffs, Andrew Kraus and his wife, Daisy, instituted the present suit against the defendant, Fisher, to recover compensation for injuries received by each of them while riding as passengers in defendant’s car by his invitation when that car collided with a train of the Central Bail-road Company of New Jersey at a grade crossing at Three Bridges. The defendant denied liability for the accident, and the trial resulted in a verdict in his favor. The proofs showed that Fisher and his guests, the present plaintiffs, were traveling in a southerly direction along Main street in Three Bridges. This street is crossed at grade by the tracks of the Central Eailroad Company. The crossing is not protected by gates, but on the southerly side of the tracks the .railroad company had erected a signal post bearing a bell or gong which, when in order, rang as trains were approaching the crossing, thus warning travelers along the highway of such approach. The proofs on the part of the defendant showed that as he neared the crossing he slowed down to about ten miles an hour; that he heard no gong or bell ringing from the signal post, heard no whistle blown or bell rung on the locomotive, or any rumble of the approaching train. The plaintiff Andrew Kraus also testified that he heard no ringing of the bell or gong on the signal post, or any warning from the engine as they approached the crossing or they started over the tracks. The defendant, Eisher, stated on his cross-examination that after the collision between his automobile and the train of the railroad company he heard the gong or bell on the signal post ringing, but in another part of his testimony he stated that it was not ringing after the accident happened and after he got out of his car.

The first contention is that a new trial should be ordered because the verdict which, by implication, negatived the claim of the plaintiffs that the collision was the result of negligence on the part of the defendant, is contrary to the weight of the evidence. The contention in support of this claim is that even if the bell on the signal post did not ring and no whistle was blown or bell rung on the locomotive, nevertheless, the defendant owed to his invited guests the duty of making careful observation up and down the track for the purpose of discovering whether or not the train was-approaching; that by his own admission he made no such observation, and thus demonstrated his carelessness. We consider this contention to be unsound. In the case of Snuffin, Administrator, v. McAdoo, Director-General of Railroads, 93 N. J. L. 231, the plaintiff sought to recover compensation for the death of his intestate, who was run over by a train while crossing the tracks of a railroad (which was operated by the defendant) at a highway crossing. The defense interposed was that plaintiff’s decedent was guilty of contributory negligence in failing to look and listen before crossing the tracks. A crossing bell had been installed at the intersection of the railroad and the highway. It was-held by the Court of Errors and Appeals that, under the statute of 1909 (Pamph. L., p. 137), which in substance provides that any person approaching the right of way of a railroad which crosses a public highway, and at which crossing a bell has been installed by the railroad company designed to protect the traveling public from danger in passing over the crossing, is entitled to assume such warning appliance is in good and proper order and will be duly and properly operated unless a written notice “out of order” be-posted in a conspicuous place at such crossing, a traveler-along a highway has a right under the statute to rely upon the warning of the crossing bell for his safety, and in the absence of the notice “out of order” is entitled to assume-that it is safe for him to cross the tracks; and that under such circumstances he is relieved from any obligations to. stop, look and listen before starting to cross the railroad tracks. This decision is controlling in the present case on the question of negligence on the part of the defendant, if it be assumed that the signal bell was out of order and did not ring, for there is no suggestion that an “out of order”' notice -was posted at the crossing. Counsel for the plaintiffs contends that the testimony to which we have referred practically demonstrates that the signal bell was in proper order and was ringing at the time of the accident, and that consequently the rule laid down in the case cited has no application. But the question of whether the signal bell was out of order or not was purely for the jury. Their verdict evidently is based upon the fact that it was out of order and we cannot say that their finding was not justified by the evidence in the case. No representative or employe of the railroad company was called for the purpose of saying that the-crossing bell was in order at the time of the accident, and there is nothing bearing upon this point except the testimony which has been already recited.

The next contention is that the trial court was wrong in failing to comply with plaintiffs’ request to direct a verdict in their favor based upon the negligence of the defendant. and to submit to the jury only the question of damages, if any, sustained by the plaintiffs. No argument is made in support of this contention, and clearly it is without merit in view of what has already been stated.

Next it is contended that the court erroneously refused to charge the following request submitted on behalf of the plaintiffs: “If Mr. Eisher was guilty of negligence in not observing the approaching train and which he could have seen if he had looked first to the right at a place where he could see the train, or if he had moved on closer to the track on which the train was coming without looking efficiently and thus seeing the train which immediately thereafter struck him, he was guilty of negligence in placing himself and passengers in a position of peril and had no one else to blame for it, and a verdict should be found for the plaintiffs.” This request was properly refused in view of the decision of the Court of Errors and Appeals in Snuffin v. McAdoo above referred to.

Next it is argued that the court erroneously neglected to refer to the question of contributory negligence and that the failure to exclude that factor from the consideration of the jury was very injurious to the plaintiffs. This statement is not true in fact. The court charged the jury upon the subject of contributory negligence as follows: “There is no proof in the case that the plaintiffs were guilty of contributory negligence and hence you must not consider that as an element in the case.”

Lastly, it is argued that the court erroneously refused to instruct the jury that “if Mr. Eisher failed to observe efficiently and effectively the approach of the train which struck the car, he did not exercise reasonable care and is guilty of such negligence as justifies you in finding a verdict for both plaintiffs.” We have already disposed of this point in favor of the defendant.

Our conclusion is that the rule to show cause should be discharged.


text:
    ANNA ALISAUSKAS ET AL., PLAINTIFFS, v. ANGELINA ITRO ET AL., DEFENDANTS.
    Decided October 6, 1931.
    Before Gummeee, Chief Justice, and Justices Teenchaed and Lloyd.
    Eor the rule, Heine & Laird.

    Contra, Kalisch & Kalisch.

   Pee Cueiam.

This is an automobile accident case. The plaintiff Anna. Alisauskas, a little girl eight years of age, while crossing Washington avenue in Hackensack, was struck by an automobile owned by the defendant Angelina Itro and operated by the other defendant, William Itro, who was driving the car for her. The little girl attempted to cross the street in the middle of the block. The jury rendered a verdict in favor of the child for $5,000 and in favor of her father, who joined in the suit, for $1,200, and the defendant thereupon applied for and obtained the present rule to show cause.

The first ground upon which the verdicts are attacked is that they are contrary to the weight of the evidence on the question of defendants’ liability. The proofs submitted on the part of the plaintiffs was that the plaintiff had almost completed the crossing of Washington avenue and was within five or six feet of the curb when she was struck by the front left side of the automobile. Whether the child was running or walking was a matter of dispute, but that seems to us to be immaterial. The proofs submitted on the part of the defendant showed that as he approached that part of Washington avenue which the child attempted to cross, he observed her and her elder sister on the right side of the street, and that when he was a distance of about seventy-five feet from the1 point where they were standing they suddenly darted across the street; that as they did so he blew his horn to warn them, but when the infant plaintiff reached the other side of the street she started back again and ran into the side of the car; that the elder sister had been chasing her and that she was running away. It is evident that whatever the conditions under which the accident happened were, the driver of the car saw this child in time to avoid the collision. If, as he said, when he was about seventy-five feet from the point where these two children were standing, the little one ran across the street chased by her elder sister and then turned and ran back, it was a question for the jury to say whether, in view of that situation, he was not careless in failing to have his car sufficiently under control to avoid striking one or the other of these children by stopping it, if necessary. If the accident happened in the way in which the plaintiffs’ witnesses testified, that is, while this little girl was crossing the street from one curb to the other, certainly the jury were justified in holding him responsible for the accident.

It is further contended that the damages awarded to this child and her father were each of them excessive. The proofs submitted by the plaintiffs showed that as a result of the accident the right ear drum of this little child was ruptured and that she will be permanently deaf in that ear. This was contradicted by medical testimony offered by the defendants, but we consider that the proofs fully justified the jury in so finding. The question therefore is whether an award of $5,000 for permanent deafness which will continue through the life of this child, is excessive. It is liberal, but we cannot say that it is so clearly excessive as- to justify us in setting it aside. As to the award to the father, it may fairly be assumed that the permanent deafness of his child in one ear will to some extent interfere with her ability to perform services during her residence in her father’s home. Just what pecuniary loss the father would sustain by reason thereof is to some extent a matter of guesswork, and we cannot say that the jury was manifestly wrong in its finding that $1,200 would be reasonable compensation therefor.

The rule to show cause will be discharged.


author: Pek Cttbiam.

text:
    ROBERT A. RYRIE, PLAINTIFF, v. JAMES LOWE, DEFENDANT.
    Submitted May 5, 1931
    Decided October 5, 1931.
    Before Justices Campbell, Lloyd and Bodine.
    For the plaintiff, Bernard Berlman and Waller S. Keown (George D. Bothermel, of counsel).
    For the defendant, Starr, Summerill & Lloyd {Frank T. Lloyd, Jr.).

   Pek Cttbiam.

On April 2d, 1930, the plaintiff, an aged man, was struck by the defendant’s automobile on Ferry street near Mt. Ephriam avenue, Camden. lie had judgment for $8,500. Two questions are submitted on this rule: (1) The verdict was against the weight of evidence; (2) the verdict was excessive.

Our examination of the record leads us to believe that by the clear weight of evidence the plaintiffs right of recovery was established. The proofs show that plaintiff, after he had alighted from a trolley car at a regular stop at the Evergreen Cemetery gate, was struck by the defendant’s automobile before he could reach the sidewalk. The' trolley car had stopped in the regular way and the proofs show that the plaintiff was struck before the trolley had started up again. The proofs were sufficient for the jury to infer that the defendant attempted to pass a standing trolley and in so doing injured the plaintiff.

The proofs of damages are less clear, however, than they should be. There was some proof that the plaintiff was seventy-two years of age and some that he was eighty-two years of age. The fracture of the skull from which he suffered had impaired his memory, but there was little or no evidence adduced from which the jury could find to what extent, if any, his earnings had been impaired.

Unless the plaintiff consents to a reduction of the verdict to $5,000, the rule will be made absolute; otherwise a discharge may be entered.


text:
    SAMDIN REALTY COMPANY, PLAINTIFF, v. JOSEPH CHRISTIAN ET AL., DEFENDANTS.
    Decided October 6, 1931.

      Before Gummere, Chief Justice, and Justices Trehchard and Lloyd.
    For the rule, William Reich.

    Contra, John C. Slokel.

   Per Curiam.

This suit was brought to recover moneys alleged to be due upon a promissory note made by one Geza Stamberger for $4,000, dated September 28th, 1928, and payable three months after date to the order of Joseph Christian. The note was endorsed by the latter and by four others, the last one of whom was Louis B. Nagy. The plaintiff company claims that it became the holder of the note in due course and before maturity. The suit was brought against the maker and all of the indorsers. Each of the defendants filed an answer, but when the case came on to be tried none of them appeared except the defendant Nagy. At the close of the trial, all of the defendants except the latter having defaulted, the court directed a verdict against them, and left the question of Nagy’s liability to be determined by the jury. In absolute disregard of this instruction, the jury rendered a verdict in favor of all of the defendants, thus demonstrating its unfitness to serve in that capacity.

The only question submitted before us on the present rule to show cause is the propriety of the verdict rendered in favor of the defendant Nagy. His defense was that the note was given to Christian, the payee, as the representative of the plaintiff corporation, and that no consideration passed from it or from Christian to the maker, Stamberger. In support of this defense he called as a witness Stamberger, the maker of the note, who testified that he delivered this note to one Gindin, who was the president of the plaintiff corporation, under a promise on the part of the latter that he would go to Trenton to a bank located there where the plaintiff corporation carried its accounts, have the note discounted and turn over the proceeds thereof to Stamberger for his use; but that in disregard of his promise, Gindin never did pay-over any money to Stamberger, claiming that he was not able to secure a discount of the note. This story of Stamberger’s was denied by Gindin, who testified that the note was given in payment of a check and a promissory note made by a corporation of which Stamberger was the president. Our examination of the testimony submitted in the case leads us to the conclusion that it strongly preponderates in favor of the plaintiff’s claim that the note was given to the payee as the representative of the plaintiff company in satisfaction of the checks to which we have referred, and not for the purpose of having it discounted for Stamberger’s benefit.

' This conclusion taken in connection with the manifest unfitness of the jury to sit in the case justified a direction that the present rule to show cause be made absolute. It will be so ordered.


author: Pee Cuetait.

text:
    THE PROSPECT POINT LAND IMPROVEMENT COMPANY OF LAKE HOPATCONG, A NEW JERSEY CORPORATION, PLAINTIFF-RESPONDENT, v. SEWARD B. JACKSON, DEFENDANT-APPELLANT.
    Submitted May 5, 1931
    Decided October 5, 1931.
    Before Justices Campbell, Lloyd and Bodine.
    For the defendant-appellant, Minton & Bay.

    For the plaintiff-respondent, E. Warner Boremus.

   Pee Cuetait.

The plaintiff had judgment in a case tried before a jury. The suit was brought to recover the arrearages of rent reserved in a lease of premises in Byram township, Sussex county, New Jersey.

The defenses raised by the pleadings were: (1) The defendant was not indebted; (2) the plaintiff did not have title to the premises leased.

The case comes up on an agreed state of facts.

1. We fail to see harmful error in sustaining an objection to a question propounded to the appellant: “Why did you not pay the balance of the rent?” If there was an eviction, the payment could not have been enforced, but no attempt seems to have been made to show an eviction and the reason for the defendant’s failure to pay rent was irrelevant. -

2. A witness, McBride, built a fence across part of the premises. A question concerning McBride’s claims was properly excluded. Lack of title could have been proved, but the court was not concerned with claims but facts.

3. The judge’s charge is not returned with the record, and we know of no way in which we can determine its incorrectness save by an examination thereof.

4. With the record is returned something said to be plaintiff’s requests to charge which were charged and which should not have been charged. Perhaps not! The charge is not before us, nor does it appear that the defendant made any requests to charge. We cannot, since we can make no examination of the charge, say that some part of it was erronous. This court is entitled to have the whole charge laid before us so that we can determine if there was prejudicial error.

The judgment is affirmed, with costs.


text:
    MAX GURTMAN, PLAINTIFF, v. MARTIN D. HARRIS, DEFENDANT.
    Decided October 6, 1931.
    Before G-ummeee, Chief Justice, and Justices Tbenchaed and Lloyd.
    For the rule, William N. Gurtman.

    Contra, Filbert L. Bosenstein and Alex M. MacLeod.

   Pee Cubiam.

The plaintiff entered into a contract with the Roman Realty and Construction Company for the furnishing of labor and material required for the installation of certain galvanized doors, copper vent hoods for gas ranges, galvanized pipes for the same, copper leaders from the roof together with copper gutters, galvanized skylights and other fixtures recited in the agreement. These fixtures were to be installed according to plans designed by one Clark, and the Roman Realty and Construction Company, the owner of the building, agreed to pay for the labor and material the sum of $2,200. This payment was guaranteed by the defendant, Martin D. Harris. The contract was executed and the guaranty signed on the 30th of March, 1928. The plaintiff completed the work called for by the contract, demanded payment therefor from the Eoman Eealty and Construction Company, and the demand not having been complied with, the present suit was instituted against the defendant on his contract of guaranty. The latter, by his answer, denied liability upon two grounds: First, that the plaintiff’s work wras so carelessly and improperly done as to cause considerable damage to the building in which the fixtures were installed, and that his guaranty was conditioned upon the proper installation of the fixtures by the plaintiff; and second, that his contract of guaranty had been legally canceled by him before any payments to the plaintiff had accrued under the primary contract or before any work had been done by the plaintiff in the installation of the fixtures. The proofs submitted on the part of the defendant show that some ten days after the making of the contract the Eoman Eealty and Construction Company, by its duly authorized agent, notified the plaintiff by letter not to proceed in the performance of the contract; that afterward the plaintiff had a conversation with the owner’s representative, at which Dr. Harris, the defendant, was present; that the plaintiff asked what was meant by the letter instructing him not to proceed with the work, to which the company’s agent replied: “I mean what I said in this letter, that you cannot start wrork unless that guaranty of Dr. Harris gets off the agreement or contract. I do not need Dr. Harris to sign. If I am not good enough for the job, we don’t want you to work at it.” The plaintiff then left, but came back in twenty minutes to the agent’s office and said to him: “All right, I don’t need any agreement. I am going to work the job. I never leave a job that I take, and I am going to continue with the work without any guaranty.” The plaintiff denied having agreed to release the defendant from his guaranty, but admitted that after the conversation to which we have referred ho proceeded with the installation of the fixtures. At the close of the trial the court charged the jury that if the guaranty continued until the work was done, Dr. Harris must pay over the amount of the contract or that amount less what the jury should find ought to be deducted because of faulty work, if there was any'faulty work; that is, if the contract was not properly performed; and if, on the other hand, thejr should find that the contract of guaranty was revoked, as Dr. Harris says, then of course there must be a verdict of no cause of action. The jury rendered a verdict in. favor of the defendant. That verdict must be presumed to have been rendered in accordance with the instructions of the court; in other words, it is an implied finding that the contract of guaranty was revoked.

The first ground upon which 'we are asked to make this rule to show cause absolute is that the verdict is contrary to the weight of the evidence. We think there is no merit in this contention. The sole finding of the jury, by necessary implication, was-that the contract of guaranty had been revoked by the parties, and, in our opinion, the weight of the evidence upon that phase of the case supported the jury’s finding.

The next contention is that the verdict is the result of mistake, passion or prejudice on the part of the jury. What has already been stated disposes of this point.

Next it is said that the court' erred in admitting in evidence the letter written by the agent of the owner to-which reference has already been made. The argument is that there was no proof that this letter was properly addressed to the defendant, nor that it was ever received by him. According to the testimony submitted by the defendant, after the writing and mailing of the letter the plaintiff and the agent of the owner had a conversation, in the course of which the plaintiff asked the agent, “what was meant by this letter,” which was the letter admitted in evidence. In view of this question it is manifest, if the testimony was true, that the plaintiff had received the letter, and that being so, the question of whether or not it was properly addressed is immaterial. He received the letter, according to the testimony submitted by the defendant, and then agreed to act and did act in accordance with the instructions contained therein. In this situation the court properly admitted the letter itself in evidence.

Next, it is urged that the court erred in refusing to allow the following question, put to the agent of the owner of the building, on cross-examination: “Were any other contracts guaranteed by Mr. Harris?” It seems to us very plain that this question called for an answer which had no relevancy to the subject-matter in litigation, and that for this reason it was properly excluded.

Lastly, it is contended that the court erred in charging the jury that the notice contained in the letter already referred to, if sent, constituted a revocation of the guaranty; but a reading of the charge shows that no such instruction was submitted. The charge of the court, in effect, was that if the notice of the cancellation of the guaranty was received by the plaintiff and he acquiesced in Such cancellation, the jury should return a verdict of no cause of action. This instruction was entirely justified by the proofs submitted on the part of the defendant.

We conclude that the rule to show cause should be discharged.


text:
    HENRY JAFFE, RESPONDENT, v. LOUIS SPATA, APPELLANT.
    Submitted May term, 1931
    Decided October 7, 1931.

      Before Justices Campbell, Lloyd and Bodine.
    For the appellant, William V. Rosenlcrans.

    For the respondent, Feld & Weiss.

   Pee Cueiam.

This action was to recover damages for injuries to plaintiff’s automobile, due, it was claimed, to negligence in the operation of defendant’s car on Central avenue, in Passaic. The case was heard by the judge without a jury and there was a judgment for plaintiff in the District Court. Defendant appeals, contending that there was no evidence of negligence in the defendant, that plaintiff’s agent was guilty of contributory negligence, and that it was error to find for the plaintiff.

The case made by the plaintiff was that the automobiles were proceeding in opposite directions on Central avenue and that when Highland avenue, which intersects Central avenue, at right angles, was reached, and plaintiff had proceeded three-fourths of the way across it, the defendant’s car suddenly turned to its left directly in front of the plaintiff’s car, compelling its driver to swerve from the highway to avoid a collision and strike a telephone pole, and thereby causing the damage for which the action was brought.

It is quite clear that negligence in the defendant could be inferred from such proof, and certainly the evidence was not of such character as to require a finding that the plaintiff’s driver was guilty of any negligence contributing to the accident.

The judgment is affirmed, with costs.


text:
    ANTOON JAGER, PLAINTIFF, v. ISIDORE BRESLOW AND SAMUEL BRESLOW, TRADING AS BRESLOW BROTHERS, ET AL., DEFENDANTS.
    Submitted May term, 1931
    Decided October 7, 1931.
    Before Justices Campbell, Lloyd and Boduste.
    For the rule, Feder & Rinzler and Samuel Koestler.

    Contra, Peter Hofstra.

   Per Curiam.

This is a rule to set aside service of process. The depositions taken under the rule disclose that the defendant Arnesto Paint Company, Incorporated, is a manufacturing corporation, organized under the laws of New York. In the marketing of its product in New Jersey it employed one Seiler as its agent, who was authorized to take orders, but. not to make contracts. When orders were received they were' either accepted or rejected by the company’s officers in New York. Process was served on Seiler.

The statute under which the writ was served provides that “process may be served upon any officer, director, * * * of such corporation * * * or by leaving a copy at the office, depot or usual place of business of such foreign corporation; provided that in case there is no officer, * * * residing in this state, nor any office, depot or usual place of business in this state, process may be served on any motorman, conductor or servant of said corporation while in the; discharge of his duties.”

The act has been construed by this court and held to authorize service only against corporations doing business in this state. Carrol v. New York, New Haven and Hartford Railroad Co., 65 N. J. L. 124. Merely taking orders in this state, subject to acceptance or rejection in another state is not doing business in the state within the meaning of our corporation laws. Wood Selick, Incorporated, v. American Grocery Co., 96 Id. 218.

The facts, as shown by the depositions, disclose that the defendant was not doing business in this state and the service upon its salesman was, for this reason, illegal and will be set aside.


text:
    MARY CLOHESY, BY DAVID B. CLOHESY, NEXT FRIEND; DAVID B. CLOHESY, INDIVIDUALLY; DAVID J. CLOHESY, BY DAVID B. CLOHESY, NEXT FRIEND, AND LUCY CLOHESY, PLAINTIFFS, v. RICHARD ROUTH, ANTHONY PETERS, NEW YORK AND NEW BRUNSWICK AUTO EXPRESS COMPANY, AND JOHN CONOVER, DEFENDANTS.
    Submitted May term, 1931
    Decided October 13, 1931.
    Before Justices Campbell, Lloyd and Bodine.
    Eor the plaintiffs, Harry A. Stiles.

    For the defendants, Edwards, Smith Eawson (Edwin F. Smith, of counsel).
   Pee Cubiam.

The whole contention in this case on defendants’ rale to show canse is that the damages are excessive as to three of the plaintiffs and we think the contention is well founded. The actions arose out of an automobile accident and verdicts were rendered, $5,000 in favor of Mary Clohesy, $5,000 in favor of Lucy Clohesy, and $2,000 to David B. Clohesy, husband of Lucy. Mary is a young girl of twelve years. She had a fracture of the right arm, and was taken to a hospital and remained there one month. There was a good union and no permanent injury. It is true that she testified to considerable suffering at the time of the injury and subsequently thereto as the arm seems to have been set without an anesthetic being used, and she was inconvenienced because of having the arm kept in a cast for six weeks. We think, however, that the verdict is much too large. If she will accept a reduction to $2,000, the rule will be discharged; otherwise, it will be made absolute.

As to Lucy Clohesy: She complained of having received injuries to the hip and hack which resulted in a nervous irritability and pain. Her own physician testified that he could find no marks except a few bruises on the small of the back and on one hip. The woman was a very large person and had had a previous history of nervous breakdown, and knowledge of this was attempted to be suppressed by her husband on the stand. The woman, herself, was not called as a witness. The verdict in her favor should not exceed $2,500. If this amount is accepted the rale in her case will he discharged; otherwise, it will be made absolute.

The verdict of $2,000 in favor of David B. Clohesy, husband of Lucy, is also excessive. His claim was for expenses in the treatment of his wife and for loss of her services. In view of the limited justifiable allowance to the wife and the meagre credible evidence of his own loss, we think $1,000 ample. If he will accept this sum the rule in his case will be discharged; otherwise it will be made absolute.


text:
    TECLA STAUNCH AND ANTHONY STAUNCH, RESPONDENTS, v. HERBERT B. LAZARUS, APPELLANT.
    Submitted May term, 1931
    Decided October 7, 1931.
    Before Justices Campbell, Lloyd and Bodine.
    Eor the appellant, Joseph 0. Paul.

    Eor the respondents, J. Edward Bennett (Samuel E. llresch, of counsel).
   Pee Curiam.

Mrs. Staunch was injured through the fall of the plaster from a ceiling in the apartment which she occupied in an apartment house, due to a leaky water pipe in the apartment above. The present action was brought against the landlord for the damages sustained by Mrs. Staunch and her husband. Judgments were rendered in their favor in the court below, and the defendant appeals.

Among the reasons urged for reversal is one that there was no proof of negligence, and we think this is so. The plaster fell from the ceiling, caused by the leaky pipe, as stated. The landlord having his attention drawn to the leak, undertook to repair the pipe and, so far as the proofs show, did it effectively. The next day the plaster fell, injuring the plaintiff. This, as the only inference, was due to the water which had already saturated the plaster. As to this water the owner had assumed no responsibility. It did not come from a part of the premises as to which he had retained control. There was no proof that the pipe leaked after the repair. The only evidence on this point was that oí the plaintiff. She was asked: “Alter they made the repairs and before the ceiling fell, was the water leaking again?” The question was not answered because of objection. She was again asked: “Did you notice the ceiling after they repaired the pipe and before the ceiling fell? A. After the repairs were made I couldn’t see the pipes. Q. Could you see water coming from the ceiling? A. Water from ceiling, but broke pipe; what’s the matter, fall down.” The expression “broke pipe” must have referred to the pipe before it was repaired as she had previously said it was repaired the day before, and the uneontradicted evidence of the defense showed the pipe itself was effectively repaired. The court seems to have confused the repair of the pipe and the repair of the ceiling. There was no repair of the ceiling nor any undertaking to do so. The owner could not be held for its condition except upon the theory of a negligent repair of the pipe which we think was not shown. The pipe had been leaking for two weeks and probably so weakened the plaster that it fell the day after the pipe was fixed. The husband was asked if the ceiling leaked after the repair and he said, “not so much, a little wet, that’s all, does not leak now.”

Considering the burden on the plaintiff, this was wholly in sufficient to justify a conclusion that the pipe was carelessly repaired.

The judgment is reversed, with costs.


text:
    RUTH O’CONNOR AND JOHN O’CONNOR, RESPONDENTS, v. HARRY KLAMER, APPELLANT.
    Submitted May term, 1931
    Decided October 7, 1931.

      Before Justices Campbell, Lloyd and Bodine.
    For the appellant, Evans, Smith <& Evans (John D. Masterton, of counsel).
    For the respondents, Maurice Bernstein.

   Pee Cueiam.

The defendant appeals from a judgment entered against him in the First District Court of Paterson. He was the owner of a three-room bungalow in Singac, in this state, and John O’Connor occupied the premises as a tenant. In August of 1930, Mrs. O’Connor was injured through the giving away of steps on the leased premises and she and her husband instituted this action to recover damages, the wife for the injuries received, and the husband for the consequent loss and damage to himself. There was a judgment for the plaintiffs and the defendant appeals, contending that there should have been a nonsuit because there was no duty resting on the landlord to maintain the steps in proper repair, and that there was no proof of negligence.

As set forth in the state of the case it was testified that the stairs were in shaky condition and the top step sagged; that Mrs. O’Connor spoke to the defendant about it and that he promised to repair it; that he did repair it and shortly thereafter the repairs were made, the step gave way under the weight of Mrs. O’Connor and she received the injuries complained of.

It further appeared from the proofs that the defendant showed to the plaintiff John O’Connor the broken board and pointed out a defect in it.

We think a nonsuit could not have been granted. While the landlord as such owed no duty to the tenant to make repairs, yet if he undertook to repair, the law imposed an obligation to exercise due care in the performance of the work. There being evidence of negligence in making the repair so undertaken in the present case, the judgment will be affirmed, with costs.


text:
    WILLIAM D. DALLENBACH, PLAINTIFF, v. FRANK J. HINELINE AND THE CAMDEN LIME COMPANY, DEFENDANTS.
    Submitted May term, 1931
    Decided October 7, 1931.
    Before Justices Campbell, Lloyd and Bodine.
    For the rule, Curry ,& Purnell (Edward T. Curry, of counsel).

      Contra, Quinn, Parsons <& Doremus (John J. Quinn, of counsel).
   Per Curiam.

This is defendant’s rule for new trial and the single reason urged for making it absolute is that the damages are excessive. The plaintiff, a young man twenty-three years of age, received through the negligence of the defendant an injury to his left shoulder, lacerations of the hand, a fracture of the left forearm and an injury to his private parts resulting in a permanent stricture of the urethra. He received a verdict of $10,000.

While the verdict is high, we think it is not so clearly excessive that it should be disturbed. The proofs were that he suffered severe pains; that his left arm was seriously impaired in its usefulness and that there was a permanent stricture of the urethra which required a periodical expanding of that organ to permit the passage of the urine; that this was always painful and that even the passage of urine itself was a painful experience. We are not prepared to say that for such injuries, both of which were permanent in their effects, we should either grant a new trial or reduce the-amount as a condition of refusing a new trial.

The rule is discharged.


text:
    TIMOTHY BUCKLEY AND MARY BUCKLEY, PLAINTIFFS, v. HYMAN GOLDBERG, DEFENDANT.
    Submitted May term, 1931
    Decided October 7, 1931.
    Before Justices Campbell, Lloyd and Bodine.
    Eor the rule, John F. Ryan.

    Contra, H. Warner Doremus.

   Pee Cueiam.

As Mrs. Buckley, a pedestrian, was crossing state highway No. 4 where it intersects Matawan Road in Middlesex county,, she was struck and severely injured by the defendant’s automobile. The present action for the damages resulted in a verdict of $7,000 in her favor, and $1,000 in favor of her husband, Timothy Buckley.

The defendant has a rule for a new trial and urges that the verdicts are against the weight of the evidence as to contributory negligence on the part of Mrs. Buckley, and that they are excessive in amount.

The first reason is wholly without merit. When Mrs. Buckley started across at the intersection, traffic on the state highway had stopped to permit plaintiff and other pedestrians, who were on their way to church, to cross. The plaintiff, in response, was in the act of crossing, when the defendant, disregarding the action of other drivers, came down on the left side of the highway and struck her. It is difficult to see any evidence of negligence on her part, much less that negligence was so apparent that the jury should have found against her.

The award to Mrs. Buckley seems large to us, but we are not prepared to say that it is so clearly excessive that we would be justified in reducing it. She is a woman sixty 3rears of age, she was severely bruised in many places about the body and had a broken collar bone and a sprain of the wrist. There is an impairment of the use of the arm. She suffered severe shock, was kept in the hospital for four weeks and confined to her home three months. Severe pain resulted and this continued up to the time of the trial.

The award to her husband, including, as it did, actual outlay of nearly $600, cannot be said to be excessive.

The rule is discharged.


author: Pee Oueiam.

text:
    JULIUS H. COHN AND SAMUEL R. COHN, PARTNERS TRADING AS COHN & COMPANY, RESPONDENTS, v. NORTHERN REAL ESTATE COMPANY, APPELLANT.
    Submitted May term, 1931
    Decided October 7, 1931.
    Before Justices Campbell, Lloyd and Bodine.
    For the appellant, Irving W. Teeple.

    For the respondents, Israel B. Greene.

   Pee Oueiam.

The appeal in this case is by the defendant from a judgment rendered against it in the First District Court of Newark.

The action was by the plaintiffs, certified public accountants, for services rendered to the defendant in the preparation of federal tax returns. The defendant admitted the services but contended that at least a portion of them were rendered in pursuance of a written contract which provided that for such portion there should be no charge. The difficulty here is that the alleged contract does not appear to have been offered in evidence, nor is it contained in the state of the case. There is nothing, therefore, before us that would justify a reversal and the judgment is affirmed, with costs.


author: Per Curtam.

text:
    PAUL ZUK, PLAINTIFF, v. ANTON ELSHKEWICH, DEFENDANT.
    Submitted May 5, 1931
    Decided October 5, 1931.
    Before Justices Campbell, Lloyd and Bodine.
    Eor the plaintiff, Heller & Boss (Aaron Heller, of counsel).
    For the defendant, Edward H. Baches and William E. Holmwood.

   Per Curtam.

The plaintiff had judgment for $470. The action grew out of a cross-road automobile accident in Garfield, and was brought for the recovery of personal and property damage.

The appellant has not filed with the clerk of this court a brief specification of the determination or direction of the District Court with respect to which he is dissatisfied in point of law, as required by rule 145 of the Supreme Court. “Such specification corresponds to an assignment of errors at common law, and if there be no specification, there is no error assigned, and while the judgment might perhaps be affirmed (see Champlin v. Barthold, 82 N. J. L. 13), the practice has been, in the absence of any specification whatever, to dismiss the appeal. Sentliffer v. Jacobs, ante 84, p. 128.” Helme Co. v. Baranowski, 84 Id. 530.

The appeal will be dismissed.


text:
    GEORGE C. BALL, APPELLANT, v. WILLIAM PACE HOFF, RESPONDENT.
    Submitted May term, 1931
    Decided October 7, 1931.
    Before Justices Campbell, Lloyd and Bodine.
    Eor the appellant, John H. .Dahllce.

    Eor the respondent, Smith <& Smith (Sylvester 0. Smith, of counsel).
   Pee Cueiam.

The appeal in this case, with a single exception, is devoid of all grounds of appeal calling for consideration by the court. No ruling of the learned trial judge is presented; no specific instruction to the jury is made subject of complaint; nor was there any exception to the charge.

The single valid ground is that the court refused to charge the plaintiff’s requests for instruction. In these attempt is made to have the court instruct the jury on the present trial what a former jury should have found when a phase of the case was before it; a request so obviously improper as to call for no comment.

The action was an ejectment to recover possession of six inches of ground adjoining the party line. The ease had been tried before to determine what was the true line. A verdict was rendered, execution issued and a return by the sheriff that he had put the defendant (in whose favor the verdict was) in possession. It was contended on the present trial that the defendant then placed his fence posts six inches beyond the line as fixed by the judgment in the former trial, and this issue was tried out with a result adverse to the plaintiff. Appellant’s real grievance is as to the finding of the jury, a grievance which could only be considered on rule for new trial.

The judgment is affirmed, with costs.


text:
    LUTHER A. RYER, RELATOR, v. EDWARD J. HOLLAND, CITY CLERK OF THE CITY OF JERSEY CITY, RESPONDENT.
    Argued September 30, 1931
    Decided October 10, 1931.
    Before Justices Trenchard, Daly and Donges.
    Por the relator, George L. Record.

    Por the respondent, Thomas J. Brogan.

   Per Curiam.

The relator has presented, on notice, a petition and affidavits, and asks for a writ of mandamus requiring the city clerk of Jersey City to forthwith call an election at which there shall be submitted to the voters the question of the adoption or rejection of the act known as the Municipal Manager Form of Government act. Pamph. L. 1923, ch. 113.

Prom the affidavits submitted, both by the relator and respondent, it is clear that the respondent has refused to call the election because, he asserts, the number of qualified persons rquired by the statute did not sign the petition for such election, and, perhaps, for other reasons.

In this posture of affairs, we conclude that the application must be denied. We think that the cases of Haines v. Standoven, 91 Atl. Rep. 804; Ford v. Gilbert, 89 N. J. L. 482; Finnegan v. McDonald, 133 Atl. Rep. 785; Cusack v. Edge, 139 Id. 727, and Balm v. Cape May, 127 Id. 88; affirmed (Court of Errors and Appeals), 127 Id. 923, are directly in point and controlling.

In Haines v. Standoven it was said:

“The clerk may have committed errors either in the method of investigation pursued by him or in the conclusions reached by him; but such errors cannot be reviewed or' corrected by the writ of mandamus.”

These cases further hold that certiorari is the proper remedy to review in such cases, and that if the remedy by certiorari results in setting aside the decision of the clerk and he persists thereafter in his refusal, then mandamus is available to enforce obedience.

The application is denied and the writ of mandamus refused.


text:
    BRIDGET FINNEGAN, PLAINTIFF, v. THE GOERKE COMPANY, DEFENDANT.
    Submitted May term, 1931
    Decided October 13, 1931.
    Before Justices Campbell, Lloyd and Bodine.

      For the rule, John A. Matthews.

      Contra, John 1¥. McGeehan, Jr.

   Per Curiam.

This is a rule for new trial taken out by the defendant. It is urged that the rule be made absolute for two reasons: (1) that the verdict is against the weight of the evidence, and (2) that the damages are excessive.

The first ground is without merit. Plaintiff fell over a box in the defendant’s store, which had been carelessly placed in one of the aisles. The negligence is not disputed, but it is claimed that plaintiff’s own negligence contributed. There is no substance in this. She was behind two other women •and could hardly be expected to anticipate that an obstruction would be placed in an aisle that would endanger her safety in walking.

As to the damages: The verdict was for $20,000. There was a serious injury to the right knee which resulted in a chronic synovitis and caused severe pain and impaired her use of the leg, and also prevented the doing of her work as before. She was fifty years of age and it is said had an expectancy of sixteen years of life. While the injury is severe and the damage should be substantial, we think the verdict is too large. If the plaintiff will accept the sum of $12,000 in satisfaction of the award, the rule will be discharged ; otherwise it will be made absolute.


author: Pee Cukiam.

text:
    FLORENCE R. O’NEILL, APPELLANT, v. GEM BUILDING AND LOAN ASSOCIATION, RESPONDENT.
    Submitted May term, 1931
    Decided October 13, 1931.
    Before Justices Campbell, Lloyd and Bodine.
    Por the appellant, Michael J. Tansey.

    For the respondent, Colton •& Hare.

   Pee Cukiam.

The action in this case was against a landlord of premises in Newark, and in it the plaintiff sought to recover damages for injuries received through a fall on the stairway, the fall claimed to be due to the negligence of the defendant in failing to maintain a light in the hallway. There was a nonsuit based on the ground that the defendant owed no duty to the plaintiff. The hallway was part of the premises retained by the landlord.for the general use of the tenants of the office building, but it was contended that on the opening of counsel the plaintiff was at most but a licensee and not an invitee.

The nonsuit was directed at the conclusion of the plaintiff’s-opening and from this opening the following facts appeared: Miss O’Neill, the plaintiff, had brought a raincoat to her sister, who was employed by the Essex county juvenile clinic occupying the third floor of the building, it being a rainy day and the sister wanting the coat. As she was proceeding down the stairway, which was dark, she fell and received the injuries. It was shown that there was equipment for the lighting of the stairway by lights in either hall, but these were not lighted. These fixtures had been lighted on other days and it was part of the contract in the lease that they .should be lighted.

We think that under our cases and the general principles ■of law the action of the trial court was right. In the case of Fitzpatrick v. Cumberland Glass Co. (Supreme Court), 61 N. J. L. 378, much the same situation existed, a boy in that case carrying his father’s dinner to him at the company’s plant. It was held that it was a matter in which the ■defendant had no interest, that the boy was on business wholly .and peculiarly connected with his father as an individual and that he was a licensee only without right of recovery except in the event of willful injury.

Fleckenstein v. Atlantic and Pacific Tea Co. (Court of Errors and Appeals), 91 N. J. L. 145, was the case of a boy of twelve years going into a store with a friend, the friend intending to make purchases, the plaintiff not so intending. A clerk in opening a box of merchandise caused a piece of metal to fly in Eleckenstein’s eye, by which he lost the sight. It was held that he was a licensee and not an invitee.

We cannot avoid the controlling effect of these cases on the present action. Here the girl was taking a coat to her sister for the individual and personal use of the sister. By no possibility could the tenant or the landlord be benefited thereby. She was legally in the situation presented in the ■cited cases.

The judgment is affirmed, with costs.


text:
    ABRAHAM DAVIDSON, PLAINTIFF, v. PROVIDENCE WASHINGTON INSURANCE COMPANY, DEFENDANT.
    Submitted May term, 1931
    Decided October 13, 1931.

      Before Justices Campbell, Lloyd and Bodine.
    Eor the rule, Arthur T. Vanderbilt.

      Cantra, David T. Wilentz (Joseph T. Lieblich, of counsel)..
   Pee Cueiam.

The insurance company, defendant, has a rule for new trial in a case wherein a verdict was rendered against it for $3,269.

The reasons urged on the rule are that-the jury was misdirected as to the law, that certain requests were improperly-refused, and that the verdict was against the weight of the-evidence on two vital elements of fact and as to the damages..

The policy was for fire insurance on the plaintiff’s bakery.. On April 21st, 1929, a fire occurred which totally destroyed the stock of merchandise, and, as required by the policy, the-plaintiff supplied proofs of loss. On August 7th, 1929, the: defendant wrote a letter to the plaintiff in which it rejected these proofs on the grounds that the claim was excessive and that the origin of the fire was not correctly stated. The letter added the following: “You are hereby required to furnish in detail an itemized statement of loss supported by bills and invoices setting forth the correct prices and quantities and the amount of loss and damages sustained by you. We hereby notify you that it is the company’s desire to conduct an examination under oath at the offices of Arthur T.. Vanderbilt, No. 790 Broad street, Newark, on the afternoon of August 13th, at two p. m., and we respectfully request your presence there at that time.”

The plaintiff appeared with his attorney (by arrangement with opposing counsel) the day after the time and place named, the attorney stating, however, that it was voluntary and not in response to the notice, which he deemed insufficient under the terms of the policy. The plaintiff did not there produce the bills, but submitted to examination.

At the end of the examination there was an adjournment to September 5th, 1929, counsel for the company stating that it was for the purpose of having plaintiff bring his bills. On September oth, the plaintiff did not appear.

Nothing further appears to have taken place and the present action was begun.

At the trial before Judge Ackerman the failure of the plaintiff to furnish the bills, &c., and to subscribe to his statement was proved, and it was contended that this barred the present action under the terms of the policy, which provided that no action should be sustainable until after full compliance with its requirements in this regard. Judge Ackerman charged the jury that the notice to appear and produce was legally insufficient, but left it to the jury to determine whether the actual appearance was in compliance with the notice and a waiver of its defects.

We think he was right. While on examination by Stoffer, in the statement referred to, plaintiff said he was present to be examined in response to the notice under the policies, lie was not conducting his own ease and his counsel expressly announced to the contrary. As a matter of law the plaintiff could hardly be impailed on an equivocal answer thus obtained, and it was for the jurjq and not the court, to say if there was a waiver. As to the notice itself, we think it was insufficient. A proof of loss had been furnished. The company had sixty days in which to pay or demand further proofs, and submission to examination and production of bills. It undertook the latter course and gave the notice specified. The policy required that the insured, “as often as. required * * * shall submit to examination and on oath by any person named by the company and subscribe the same,, and shall produce for examination all books of account, bills, &c., * * * at such place as may be designated * * * and permit copies to be made.” The notice was not in literal compliance with this provision, and we think, therefore, on the legal phases of the case the court was right, but the verdict was against the weight of the evidence as to waiver and on the merits of the claim.

It seems clear to us that the plaintiff as a matter of fact understood the notice to be in pursuance of the company’s right under the policy, and that he and his counsel were attempting to comply with it in order to protect themselves against a possible interpretation that the notice was not defective. The plaintiff was produced at the time and place designated and the company’s counsel at the inception of the examination said he was examining plaintiff pursuant to a demand for examination under oath under the provisions of the policy and the plaintiff on the stand so admitted. To this, however, plaintiff’s counsel replied that no proper demand had been made but that plaintiff was there voluntarily to assist the company.

In fairness when this assertion was made by defendant’s counsel, the plaintiff should have stood on his rights and waited for a proper notice, but appearing in apparent compliance with the notice, the jury should have found a waiver.

We think also that the failure to produce the bills is a serious indictment of the integrity of the claim. Properly or improperly demanded, plaintiff and his attorney knew they were desired and professed to be there to assist the company. The failure to produce under such circumstances gives rise to a strong inference that they would not substantiate the claims. When to this is added the disclaimer of all knowledge of the plaintiff as to his stock of goods in the statement as compared to his fulsome testimony to the contrary at the trial, we think the case should be submitted to another jury.

The rule will be made absolute.


text:
    JOSEPH VINCZE, ADMINISTRATOR AD PROSEQUENDUM OF STEVEN VINCZE, DECEASED, RESPONDENT, v. NEW YORK CENTRAL RAILROAD COMPANY, APPELLANT. ALEXANDER TOMASI, ADMINISTRATOR AD PROSEQUENDUM OF JOSEPH B. TOMASI, DECEASED, RESPONDENT, v. NEW YORK CENTRAL RAILROAD COMPANY, APPELLANT.
    Submitted May term, 1931
    Decided October 13, 1931.
    Before Justices Campbell, Lloyd and Bodine.
    Bor the appellant, Wall, Haight, Carey é Hartpence.

    Bor the respondents, Breslin & Breslin and Feder & Binzler.

   Pee Cubiam.

The plaintiffs’ decedents were killed in a crossing collision between a truck in which they were riding and defendant’s train in Harrington Park, and the actions were to recover damages for their deaths. There were verdicts for the plaintiffs and the defendant appeals.

There are minor objections to rulings on evidence which are brought up on the appeal, but the fundamental question in the case is whether there is sufficient evidence of negligence to.go to the jury.

The averments of negligence were that the statutory signals were not given, that a crossing bell was not operating, and that a flagman stationed to give warning of the approach of trains was not performing his duty. There were two witnesses called by the plaintiffs apparently for the purpose of establishing some or all of these phases of negligence. The defendant called its train crew and a number of others to prove that the obligations on the part of the railroad were complied with.

The plaintiffs first called a man named Dreisbach and attempted to establish by him the failure of the bell to ring, the failure of the statutory signals and a failure on the part of the flagman to give warning. They also called a fourteen-year-old girl named Buelah Lang for the same purpose. The substance of Dreisbach’s testimony is that he was standing on the sidewalk in front of his business place, about seventy or seventy-five feet from the crossing, that he observed the truck rolling onto the track and stalling, up to which time there was no flagman or watchman. He was asked had the flagman done anything and he answered he should explain that. Then the witness went on: “I was standing by this window here and the train went very sharp whistle, toot-toot-toot. Q. Usual whistles? A. Oh, no. Varied in succession like, and caused me to look forward the track.” He then said he saw the truck roll on the track and the flagman shouted to stop, that the truck was on the track when he started to shout. He was then asked whether his vision to the crossing lights was unobscured and he said he did not see them working and that he was looking right at the crossing. Unfortunately on cross-examination this testimony was completely nullified by the evidence of the witness. Erom this it appeared that he had not been giving heed or attention to the conditions at the crossing; neither the lights; the flagman; nor the truck, except that he saw the truck roll on the track and heard the flagman shout the warning. He admitted to having heard from ten to fifteen toots of the whistle consuming not over live seconds oi time, which was far from proving failure to give warning by the engineer as required by law.

The other witness testified that she did not hear any bell or whistle; she did not hear anything, not even the shrieking of the danger signals. Her testimony was of that negative character which is without probative force under our cases, particularly in the face of affirmative proof to the contrary. Holmes v. Pennsylvania Railroad, 74 N. J. L. 469.

Against this was the very substantial proof of. a number of witnesses that the signals and the warnings were given.

Under these circumstances we think it was the duty of the learned trial judge to direct a verdict in favor of the defendant company. Having reached this conclusion on the fundamental phase of the case we find it unnecessary to examine the remaining grounds of appeal seeking to bring before the court the rulings on evidence and other alleged trial errors.

The judgments are reversed and a venire de novo awarded.


author: Brown, S. C. C.

text:
    F. EUGENE TUTHILL, PLAINTIFF, v. PENNSYLVANIA RAILROAD COMPANY, A CORPORATION; HUDSON AND MANHATTAN RAILROAD COMPANY, A CORPORATION, AND JOHN DAVENPORT, THE FIRST NAME BEING FICTITIOUS, THE TRUE NAME BEING UNKNOWN, DEFENDANTS.
    Decided October 24, 1931.

      Eor the plaintiff, E. Burk Finnerly.

    Eor the defendants, Collins & Corbin.

   Brown, S. C. C.

The plaintiff moved to amend the first and second counts of the complaint, in the above-entitled cause, so as to charge an action under the Federal Employers’ Liability act. In his brief the plaintiff abandons the motion directed to the count against the defendant Pennsylvania railroad but insists on the second count against the Hudson and Manhattan Railroad Company being amended.

The complaint states a cause of action at common law against the defendant Hudson and Manhattan Railroad Company. When a complaint thus states a cause of action an amendment offered alleging that the defendant was engaged in interstate commerce at the time the injuries were sustained, it has been held does not state a new cause of action. Newberry v. Central of Georgia Railroad Co., 276 Fed. Rep. 337. On application to the United States Supreme Court a certiorari was denied in this case. 257 U. S. 662. To the same effect are Hogarty v. Philadelphia and Reading Railway Co., 99 Atl. Rep. 741; Jorgenson v. Grand Rapids and I. Railway Co., 155 N. W. Rep. 535.

Where a complaint in an action for personal injuries alleges facts which may constitute the wrong either under the state law or the Federal Employers’ Liability act, according to the nature of the employment, an amendment alleging that the parties at the time of injury were engaged in interstate commerce does not introduce a new cause of action and may be allowed after the two-year limitation prescribed by law. New York Central and Hudson Railroad Co., v. Kinney, 260 U. S. 340. See, also, United States Annotated, tit. 45, under subject of Railroads, p. 525.

The proposed amendment does nothing more than amplify the cause of action already stated and falls within the decision of Swank v. Pennsylvania Railroad Co., 94 N. J. L. 547. This case was affirmed in 104 Atl. Rep. 26, and on application to the "United States Supreme Court the writ of certiorari was denied. See 254 U. S. 638.

The motion to amend the second count of the complaint directed against the Hudson and Manhattan Railroad Company will be allowed.