Auer v. Sinclair Refining Company

• Docket Number: No. 44.,44.
• Citation: Auer v. Sinclair Refining Company, 103 N.J.L. 372, 137 A. 555 (N.J. 1927)
• Decision Date: 17 May 1927
• Court: New Jersey Supreme Court
• Parties: KATHRYN SWARTZ AUER, EXECUTRIX, ETC., OF GUSTAVE S. AUER, DECEASED, RESPONDENT, v. SINCLAIR REFINING COMPANY, A CORPORATION, AND JAMES MAcACHLAN, APPELLANTS

137 A. 555

AUER

v. SINCLAIR REFINING CO. et al.

No. 44.

Court of Errors and Appeals of New Jersey.

May 16, 1927.

(Syllabus by the Court.)

Appeal from Supreme Court.

Action by Kathryn Swartz Auer, executrix of Gustave S. Auer, deceased, against the Sinclair Refining Company and another.From a judgment for plaintiff, defendants appeal Affirmed.

John A. Matthews, of Newark, for appellants.

Benjamin M. Weinberg, of Newark, for respondent.

TRENCHARD, J.The plaintiff below obtained a verdict against both defendants for damages to compensate her and her children, as the next of kin of Gustave S. Auer, for his wrongful death, which occurred on February 13, 1925, when struck by an automobile driven on a public highway by the defendant MacLachlan, while in the employ of the defendantSinclair Refining Company.

This appeal is by both defendants from the judgment entered upon such verdict.

The first point requiring notice is that the trial judge erred in refusing to nonsuit and to direct a verdict for the defendants upon the ground that there was no negligence upon the part of MacLachlan, the driver of the car.But the evidence tended to show negligence upon his part in respect to the speed and control of the car.And when, as here, negligence may reasonably and legitimately be inferred from the evidence, it is for the jury to say whether from such evidence negligence ought to be inferred.Newark Passenger Ry. Co. v. Block, 55 N. J. Law. 600, 27 A. 1067, 22 L. R. A. 374.

The next ground of appeal argued is that the verdict is against the weight of the evidence.But this does not present any legal error.And the elementary rule is that on appeals in civil cases at law the court is concerned only with correcting errors in law, and will not consider a ground of appeal that the verdict is against the weight of the evidence.Osbun v. De Young, 99 N. J. Law, 204, 122 A. 800.

The next point is that the trial judge erroneously overruled a question put to the defendant MacLachlan.But that action, if erroneous, was not prejudicial, because later, during his examination, he was permitted to testify in effect to the facts sought to be proved, and therefore will not lead to a reversal.Dayton v. Boettner, 82 N. J. Law, 421, 81 A. 726;Finkelstein v. Geismar, 91 N. J. Law, 47, 106 A. 209, affirmed92 N. J. Law, 251, 106 A. 209;Klie v. Hollstein, 98 N. J. Law, 473, 120 A. 16.

The defendants next contend that there was error in the admission of testimony given by an employee of the actuarial department of the Mutual Benefit Life Insurance Company; the point of the objection being that he was permitted to testify with reference to the Carlisle table of mortality.We think the evidence was properly admitted.The witness was admittedly qualified as an expert.And in a damage suit at law the rule is that an expert witness may make use of the Carlisle table of mortality for the purpose of showing the average expectancy of human life, or the present value of the alleged loss of income based on that expectancy, when, as here, such matters are factors in the appraisal of damages.Camden, etc., R. R. Co. v. Williams, 61 N. J. Law, 616, 40 A. 634;Notto v. Atlantic City R. Co., 75 N. J. Law, 826, 69 A. 968, 17 L. R. A. (N. S.) 1138, 127 Am. St. Rep. 835;Dickerson v. Mutual Grocery Co., 100 N. J. Law, 118, 124 A. 785;Steinbrunner v. Pittsburgh, etc., R. Co., 146 Pa. 504, 23 A. 239, 28 Am. St. Rep. 806;Shover v. Myrick, 4 Ind. App. 7, 30 N. E. 207.

In this connection the defendants contend that the charge of the court"was equivalent to allowing the jury to compute damages on an absolute rule of computation and without regard to any other circumstances of the case."But that contention is ill founded in point of fact.

The general rule is that, while the Carlisle table of mortality is evidential, irrespective of the condition of health of the person whose expectancy of life is the subject of the inquiry, yet that condition of health must be taken into account in determining the probable duration of such person's life.In the present case the trial judge so instructed the jury in effect.The complaint seems to be that he should have amplified that instruction.But his omission to amplify his instruction upon this particular point is not assignable as error...