Bush v. New Jersey & New York Transit Co.

• Decision Date: 30 June 1959
• Docket Number: No. A--113,A--113
• Parties: , 77 A.L.R.2d 908 Charles BUSH, by Charles Bush, his guardian ad litem, Charles Bush, individually, and Doris Bush, Plaintiffs-Appellants, v. NEW JERSEY & NEW YORK TRANSIT CO., Inc., Inter-City Transportation Co., Inc., Defendants-Respondents, and Stanley J. Malorgio, Defendant.
• Court: New Jersey Supreme Court

Page 345

30 N.J. 345

153 A.2d 28, 77 A.L.R.2d 908

Charles BUSH, by Charles Bush, his guardian ad litem Charles Bush, individually, and Doris Bush Plaintiffs-Appellants, v. NEW JERSEY & NEW YORK TRANSIT CO., Inc., Inter-City Transportation Co., Inc., Defendants-Respondents and Stanley J. Malorgio, Defendant.

No. A--113.

Supreme Court of New Jersey.

Argued May 4, 1959.

Decided June 30, 1959.

Harry Chashin, Paterson, argued the cause for plaintiffs-appellants (Marcus & Levy, Paterson, attorneys).

Archibald Kreiger, Paterson, argued the cause for defendants-respondents.

The opinion of the court was delivered by

SCHETTINO, J.

Appeal is from a judgment of the Appellate Division (52 N.J.Super. 513, 145 A.2d 793, (1958)) affirming a Superior Court, Law Division, judgment in favor of defendant upon a jury's verdict of no cause of action. This is an infant pedestrian-motor bus negligence case for personal injuries on behalf of the infant plaintiff and for the parents' Per quod. We granted certification. 29 N.J. 62, 148 A.2d 87 (1959).

The infant plaintiff (hereafter referred to as 'plaintiff') was 4 years, 1 month and 19 days old on the date of the accident, June 13, 1956. At that time the Bush family consisted of the parents, plaintiff, and three other children whose ages were three years, two years and six months. They resided at 67 Chadwick Street, Paterson, approximately one block from a heavy traffic intersection of Main and Mary Streets, the point where plaintiff received his injuries. On this day, Mrs. Bush sent plaintiff and his three-year-old sister out to play on their tricycles. The children wandered a block away to the above mentioned intersection. Apparently plaintiff left his sister and the two tricycles on the near side of the inersection and crossed the street. The evidence indicates that the boy was returning to his sister and the tricycles when he either ran into the rear, or was struck by the front, of the corporate defendant's bus. During the course of the trial plaintiffs took a voluntary dismissal as to the driver of the bus, Stanley J. Malorgio.

There was no eyewitness to the accident. Defendant's bus was proceeding in the southbound lane of Main Street. There was a group of telephone company employees working in a manhole at the opposite side of the intersection in the northbound lane. A civil engineer placed this manhole well over on the easterly side of the street. A member of the Paterson Police Department investigated the incident and testified that when he saw plaintiff, plaintiff was lying in the road alongside the left rear wheel of the bus and that the bus was 'parked in the intersection, in the middle of the road,' and there were no skidmarks. He further testified that he interrogated the bus driver, and that when he asked the driver what had happened, the driver told him that he was driving south on Main Street, he had a green light, he was going through the intersection when he heard a thump, he immediately stopped the bus, and when he got out, he saw the plaintiff lying there alongside the left rear side of bus.

The deposition of the bus driver was read into evidence. He stated that he was driving southerly on the proper side of the road, that there was 'Lots of clearance' between the bus and the manhole, that he looked into his rear view mirror to see if he had cleared the manhole area because of 'force of habit,' that he did not see the child before the impact, that through his rear view mirror he saw the child bounce off the bus right at the intersection and that it took him 'about thirty-five or forty feet' to stop the bus.

On direct examination he testified that he was proceeding southerly on Main Street, that when he was at Weiss Street, a block before Mary Street, he observed a red traffic light facing him at the intersection of Main and Mary Streets, that he was travelling at a speed of from 10 to 12 miles per hour and that the light turned green for him shortly before he reached Mary Street. Malorgio stated that he looked to the corner on his right for prospective passengers and, seeing none, he continued straight through the intersection at the same speed. After entering the intersection he looked into his rear view mirror to determine whether he had 'cleared the men' working at the manhole although there was admittedly plenty of clearance and there was no evidence of men actually working on the surface. He had not seen plaintiff at any moment before he saw the boy bounce off the rear left wheel of the bus. He again stated that he brought the bus to a stop in 35--40 feet. The bus was 32--35 feet long. Malorgio emphatically denied telling the police officer that he found the child lying alongside the left rear of the bus.

A repairman working at the manhole testified that the child was lying within a bus length of the bus, approximately 35 feet and was in the northerly, or opposite, traffic lane. The witness stated further that he examined the rear of the bus and found a large, fresh black mark on the left rear tire where the dust of the road had been wiped from it.

Another manhole workman testified that he saw the boy lying very near the manhole in the northerly lane and saw the bus a block away at the next bus stop.

At the conclusion of the testimony and after the denial of a motion for judgment by defendant, the trial court instructed the jury that the care required of an infant old enough to be capable of negligence is that care that is usually exercised by persons of similar age, judgment and experience and that in determining whether a child old enough to be capable of negligence has been guilty of contributory negligence 'it is necessary to take into consideration the age of the child, its experience and capacity to understand and avoid dangers to which it is exposed in the actual circumstances and situation under investigation.' Plaintiff's counsel objected to the instruction and to the submission to the jury of the question of contributory negligence. He argued that under the proofs plaintiff could not have been guilty of contributory negligence and that the court should decide the question of contributory negligence in plaintiff's favor rather than submit it to the jury as a question of fact.

The jury returned a verdict of 'No cause for action in favor of the defendant.' It is, of course, impossible to determine whether the jury found the total absence of negligence by defendant or contributory negligence by the infant plaintiff.

In the Appellate Division plaintiff argued that the trial court erred in submitting the issue of contributory negligence to the jury because there was no evidence in the record to rebut the presumption of continuing incapacity (Dillman v. Mitchell, 13 N.J. 412, 99 A.2d 809 (1953)), and that, therefore, the presumption compels the particular conclusion in the absence of evidence contra. In re Blake's Will, 21 N.J. 50, 58, 120 A.2d 745 (1956); Silver Lining, Inc. v. Shein, 37 N.J.Super. 206, 117 A.2d 182 (App.Div.1955); Morgan, 'Presumptions', 10 Rutgers L.Rev. 512 (1956). It treated plaintiff's argument to be that the issue of contributory negligence should have been withheld from the jury as a matter of law because of plaintiff's age and not that the legal rule charged was erroneous. The Appellate Division rejected plaintiff's arguments and affirmed the judgment. It held that the question of plaintiff's capacity for contributory negligence was disputable and it was properly submitted to the jury.

On this appeal plaintiff's counsel argues that there is a rebuttable presumption that this 4 years, 1 month, 19-day-old child is incapable of contributory negligence and that the presumption of continuing incapacity has not been rebutted and therefore 'the trial court was legally precluded from charging contrary to the presumption.'

Defendant argues that any error concerning the question of contributory negligence could not have been prejudicial as there is no evidence in the case that would warrant a finding of primary negligence on the part of defendant. Plaintiff has filed a reply brief directed solely to defendant's argument that there is no evidence of negligence.

It is manifest that if there was no evidence, direct or circumstantial, upon which the jury could have premised a finding of negligence on the part of defendant's bus driver, any error concerning a charge of contributory negligence could not be prejudicial. Egan v. Erie R. Co., 29 N.J. 243, 251, 148 A.2d 830 (1959); Cohen v. Borough of Bradley Beach, 135 N.J.L. 276, 279, 50 A.2d 882, 885 (E. & A.1946) ('Where actionable negligence is not attributable to defendant the question of 'contributory negligence' is immaterial.'); Freschi v. Mason, 108 N.J.L. 272, 276--277, 156 A. 758 (E. & A.1931). Cf. Maccia v. Tynes, 39 N.J.Super. 1, 120 A.2d 263 (App.Div.1956). Therefore, if the record were to present no evidence of defendant's negligence, then the judgment would be affirmed. Van Derbeek v. Conlon, 41 N.J.Super. 574, 580, 125 A.2d 531, 534 (App.Div.1956) ('Assuredly an error in instructions of law as against an unsuccessful plaintiff is not prejudicial where he manifestly fails basically to support his alleged cause of action by the facts.'). This result would follow even if defendant had not argued the complete absence of negligence. Cf. Cloyes v. Delaware Tp., 23 N.J. 324, 336--337, 129 A.2d 1, 57 A.L.R.2d 1327 (1957); Meistrich v. Casino Arena Attractions, Inc., 54 N.J.Super. 25, 30, 148 A.2d 199 (App.Div.1959), certification granted 29 N.J. 582, 150 A.2d 807 (1959). We think that the conflicting testimony as to the position of the plaintiff in relation to the bus after it came to a stop presented a jury question on the issue of negligence. Petrosino v. Public Service Coordinated Transport, 1 N.J.Super. 19, 61 A.2d 746 (App.Div.1948); Baker v. Kaplan, 1 N.J.Super. 160, 63 A.2d 279 (App.Div.1949). Thus, if there was error in the submission of the...