Baker v. Fogg & Hires Co.

• Decision Date: 15 November 1920
• Citation: 112 A. 406
• Parties: BAKER et al. v. FOGG & HIRES CO.
• Court: New Jersey Supreme Court

112 A. 406

BAKER et al.

v. FOGG & HIRES CO.

Court of Errors and Appeals of New Jersey.

Nov. 15, 1920.

(Syllabus by the Court.)

Appeal from Supreme Court.

Action by Roland S. Baker, by Ralph Baker, his next friend, and another, against the Fogg & Hires Company. Judgment for plaintiffs, and defendant appeals. Affirmed.

Garrett Z. Demarest, of Tenafly, and Rex A. Donnelly, of Bridgeton, for appellant.

Walter H. Bacon, Leroy W. Loder, and Walter H. Bacon, Jr., all of Bridgeton, for respondents.

WILLIAMS, J. The plaintiff, Roland S. Baker, a boy of 12 years, was proceeding northerly on Bank street in Bridgeton, on a bicycle on his way to school. He was riding in the cement gutter on the right-hand side of the street. Bank street runs north and south, and is intersected by Orchard street, which runs east and west. When Baker came to the southerly line of Orchard street he turned to the left, endeavoring to turn from Bank street to proceed westerly on Orchard street. Near the northwest corner of Bank and Orchard streets he was struck by an automobile truck driven by an employ of the defendant company, which was proceeding easterly on Orchard street, and endeavoring to turn to proceed northerly on Bank street. The only eyewitness, other than the boy and truck driver, testified as follows:

"The boy was going on his bicycle and he was on his right side by the gutter, and the automobile was on his left side, and the boy went across and the automobile didn't toot his horn, and the boy went across and the automobile hit him."

And this witness identified the corner where the boy was run over as the northwesterly corner. Suit was brought by the boy and his father to recover damage sustained by them respectively. The trial resulted in a verdict against the defendant, and it appeals from the judgment.

The first ground appellant makes is that the trial court should have granted a nonsuit, "as the evidence was not responsive to the pleadings, in that the complaint alleges, 'Plaintiff, Roland S. Baker, was endeavoring to turn into Orchard street on his way to the entrance to said schoolhouse yard, on his right side,' while the evidence was that he made the turn on his left side." We are not at all certain that the criticism of the complainant is justified by a reading of it, nor that there was a variation between the averments of the complaint and the proofs, but, conceding this to be the fact, the meritorious questions were tried out, and the court ought not to have nonsuited, but, in the interests of justice, permitted an amendment of the complaint and this court is entitled to do that now, and the motion of the respondent to amend the complaint in such manner as to indicate that at the said street intersection plaintiff, Roland S. Baker, "turned to the left, hut kept to the right as required by law," should be granted.

By force of section 27 of the Practice Act of 1912 (P. L. 1912, p. 382) a judgment will not be reversed for error as to matter of pleading or procedure, unless on the whole case it shall appear that the error injuriously affected the substantial rights of the appellant; hence, if such rights are not so affected, the alleged errors need not be examined. Ridgeley v. "Walker, 86 N. J. Law, 590, 92 Atl. 394.

It is further contended that the contributory negligence of the boy was so plainly shown that a nonsuit should have been directed on that ground also. Contributory negligence is a matter of defense under our present practice, and not a ground for taking the case away from the jury upon the plaintiff's proofs; it was certainly a jury question whether the boy was negligent. He was traveling on his own side of the road where the law required him to in making the turn into Orchard street. The Traffic Act of 1915 (P. L. 1915, p. 289, § 4) provides that:

"Every driver of a vehicle approaching the intersection of a street or public road shall grant the right of way at such intersection to any vehicle approaching from his right."

The boy, therefore, had the right of way, and it was not negligence on his part to assume that the truck driver would keep to the right of and beyond the center of the intersection of the two streets as provided by section 6 of said Traffic Act, p. 286, which provides that:

"A vehicle turning into another road to the left shall, before turning, pass, when possible, to the right of and beyond the center of the intersection of the two roads."

The defendant's employee, instead of keeping beyond the center of intersection in making the turn, swung over to his left, beyond the center, and struck the boy while he was near the curb. It is contended that he was negligent because he...