Benz v. Cent. R. R. of N.J.
| Decision Date | 05 March 1912 |
| Citation | 82 N.J.L. 197,82 A. 431 |
| Parties | BENZ v. CENTRAL R. R. OF NEW JERSEY. |
| Court | New Jersey Supreme Court |
(Syllabus by the Court.)
Error to Circuit Court, Essex County.
Action by Mary Benz, administratrix, against the Central Railroad of New Jersey. Judgment for plaintiff, and defendant brings error. Affirmed.
Argued November term, 1911, before GARRISON, PARKER, and BERGEN, JJ.
Charles E. Miller and George Holmes, for plaintiff in error.
Samuel Kalisch, Jr., for defendant in error.
Upon the merits presented by this writ of error touching the liability of the defendant and the plaintiff's right of recovery, our conclusion is in accordance with the rulings of the trial court. The fact that the deceased got on the step of the car from the wrong side, which was the main ground upon which the motion for a direction was based, was not a conclusive circumstance. It was, indeed, the occasion of the accident, but not, in view of what followed, its proximate or efficient cause. It did not of itself therefore establish the contributory negligence of the deceased, or absolve the defendant from using care for his safety. In fine, it was a fact to be considered by the jury, not a circumstance to which conclusive effect should be given by the court.
The rulings upon evidence and the charge of the court upon the same topic were not erroneous.
The sufficiency of the judge's charge upon the measure of damages is challenged by an assignment that consists of an extended quotation from the charge.
The specific ground of complaint taken in the brief is that the judge did not tell the jury that they were to take into consideration the expectancy of life of the widow and children of the deceased, who are the beneficiaries of the suit. Counsel's failure to prefer a request covering this point may be explained by his supposing that it would be covered by the charge. When, however, counsel, having heard the charge, knew that the point was not covered, it was his duty, if he desired to have the point covered, or to avail himself of its omission, to request the judge to charge it, or at least to pray an exception to the omission so to do. Dunne v. Jersey City Galvanizing Co., 73 N. J. Law, 586, 64 Atl. 1076.
He did neither, although from his remark at the time it is evident that he was aware of the omission of which he now complains. Such remark was not in form or effect a request to charge, and formed no part of his prayer for an exception, which was specifically "to that portion of the charge wherein your honor instructed the Jury as to the length of time that Benz might earn the money." The exception allowed by the court was equally explicit, viz., "You may have an exception to what I said on that subject."
It must be clear, beyond discussion, that in exception to what the judge had said upon one subject had no tendency to except to what he...
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Gimbel v. Laird & Co., 6.
...fact that appellant complains not concerning what was said but what the court should have said or failed to say. Cf. Benz v. Central R. R., 82 N.J.L. 197, 199, 82 A. 431, affirmed 83 N.J.L. 780, 85 A. 1134. The exception is quite like those held insufficient in many cases, of which Fenning ......
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Fenning, Dornbusch & Co. v. Greenfield
...and is very similar to that discussed in Addis v. Rushmore, 74 N. J. Law, 649, 651, 65 A. 1036; to that in Benz v. Central Railroad Co., 82 N. J. Law, 197, 198, 82 A. 431; to that in Thibodeau v. Hamley, 95 N. J. Law, 180, foot of page 183, 112 A. 320; and to that in Goldfarb v. Phillipsbur......
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Schlosser v. Goldberg, 11.
...no one of which is challenged as erroneous, the criticism being directed at an omission from the charge. Cf. Benz v. Central R. R. of N.J, 82 N.J.L. 197, 82 A. 431; Drummond v. Hughes, 91 N.J.L. 563, 564, 104 A. Second, it is said that the trial court was in error in refusing to charge the ......
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Slater Realty Corp.. v. Meys
...and the taking of an exception to the action of the court, the matter cannot be taken advantage of on appeal. Benz v. Central R. R. of N. J., Sup., 1912, 82 N.J.L. 197, 82 A. 431, affirmed Err. & App., 1912, 83 N.J.L. 780, 85 A. 1134. On the measure of damages, the trial court charged as fo......