Baker v. Kaplan

• Decision Date: 14 January 1949
• Docket Number: No. A-40.,A-40.
• Citation: 63 A.2d 279
• Parties: BAKER v. KAPLAN et al.
• Court: New Jersey Superior Court

63 A.2d 279

BAKER

v.KAPLAN et al.

No. A-40.

Superior Court of New JerseyAppellate Division, Part A.

Jan. 14, 1949.

Syllabus by the Court.

1. In view of defendants' testimony that they did not see nor hear the dog killed by their alleged negligence, nor did they feel any jolt or bump when the truck passed over it, a factual issue of negligence was raised.

2. Under the circumstances prevailing at the time of this accident, the court below could, as it apparently did, justifiably infer that the operator of defendants' truck did not exercise the requisite degree of care in the operation of his vehicle.

Appeal from District Court, First Judicial District, Middlesex County; George R. Morrison, Judge.

Action by Raymond L. Baker against Max Kaplan and another for the death of plaintiff's hunting dog allegedly caused by negligence of defendants. From a judgment for plaintiff, defendants appeal.

Judgment affirmed.

Before JACOBS, Senior Judge, and EASTWOOD and BIGELOW, JJ.

Henry C. Berg, of New Brunswick, for plaintiff-respondent.

Cox & Walburg, of Newark (Harry E. Walburg, of Newark, of counsel), for defendants-appellants.

EASTWOOD, Judge.

Defendants seek reversal of an adverse judgment of the First Judicial District Court of the County of Middlesex, sitting without a jury, in the sum of $200 damages for the death of plaintiff's hunting dog, allegedly caused by the negligence of the defendants. We do not find any merit in appellants' grounds of appeal.

The pertinent facts are: On the evening of April 11, 1945, defendants drove their truck, equipped with dual wheels, upon plaintiff's farm premises for the purpose of removing two cows which they had purchased earlier that day. The truck was owned by defendant, Max Kaplan, who was accompanied by his son, Harry Kaplan, the latter of whom was operating it. Defendants drove their truck to plaintiff's barn by way of a semicircular driveway, six feet in width, to get one of the cows. At the time it was dark and it was during this trip that they allegedly ran over and killed plaintiff's dog. The dog was tied by a chain to a dog house fifteen feet back from said driveway, the chain being fifteen to twenty-four feet in length. Defendants did not see nor hear the dog and did not know that such an accident had occurred, although the truck was only travelling five to seven miles per hour and its headlights were lit. They had been going upon plaintiff's premises to purchase cattle for approximately fifteen years, and knew of the presence of a dog on the premises but denied that they knew the whereabouts of the dog in question. There was no eyewitness to the accident. The dog's body lay in the driveway or road when the brother of the plaintiff found it about a half hour after the defendants had left. He testified that he knew the dog was alive when defendants came upon the premises to remove the two cows they had previously purchased, having heard it barking and jumping; that a short time after they left he saw the dog lying in the road over which the truck had passed and upon examination discovered that it had been killed; that the...