Carero v. Breslin

• Decision Date: 08 May 1925
• Citation: 128 A. 883
• Parties: CARERO et al. v. BRESLIN. LLOYD et al. v. SAME.
• Court: New Jersey Supreme Court

128 A. 883

CARERO et al.

v. BRESLIN.

LLOYD et al.

v. SAME.

Supreme Court of New Jersey.

May 8, 1925.

Actions by Anton B. Carero and another and by Clarence Lloyd and another against Thomas J. Breslin. Verdicts for plaintiffs. On defendant's rule to show cause. Rule discharged absolutely as to first named plaintiff and another and conditionally as to second named plaintiff and another.

Argued January term, 1925, before GUMMERE, C. J., and PARKER and KATZENBACH, JJ.

Stokes & McDermott, of Freehold (Wm. Hartshorne; of Freehold, of counsel), for plaintiffs.

Frank G. Turner, of Jersey City, for defendant.

PER CURIAM. The above cases are before us on rules to show cause allowed to the defendant. The actions were tried at the Monmouth circuit. Both suits arose out of an automobile accident occurring between the hours of 8 and 9 p. m. (daylight saving time), on July 5, 1924.

Anton B. Carero and Ethel Lloyd owned jointly an Oakland touring car. On the evening in question Ethel Lloyd invited her father and mother for a ride. The occupants of the car were Carero, Ethel Lloyd Clarence Lloyd, and Ann Lloyd. The car was being driven by Ethel Lloyd, on the road extending from Freehold to Matawan. This road runs approximately north and south. The car was being driven northwardly. About 6 or 7 miles north of Freehold this highway is crossed by a highway leading to Holmdel. The road from Freehold to Matawan is an improved concrete road. The intersecting highway is also an improved road as far as the Freehold road. West of the Freehold road it is not improved. The southeast corner of the two roads is cut away in a long curve, which permits cars to turn the curve at considerable speed. As the car being driven by Ethel Lloyd was approaching this corner, the car of the defendant, Thomas 3. Breslin, was being driven westwardly by his daughter, a girl of about 18 years of age. The Breslin car was on its way to Camden via Freehold. It was therefore necessary for Miss Breslin to turn to the left into the road to Freehold. The occupants of the car driven by Miss Lloyd testified that the car in which they were riding was being driven carefully and slowly, close to the right-hand side of the road. The view down the Holmdel road was somewhat obstructed by a field of growing grass. Suddenly the Breslin car turned around the corner, close to the wall on the left. Miss Lloyd, wheh she saw the Breslin car, thinking that she might avoid the accident, turned her car to the left. The Breslin car struck the car driven by Miss Lloyd near the right-hand front wheel. Both cars went over to the west, side of the Freehold road. The Breslin car (a Cadillac) cleared the road and landed in the shrubbery on the westerly side of the road. None of the occupants of the Breslin car, who were Miss Breslin, her father. Thomas J. Breslin, Mrs. Breslin, and Dr. James Breslin, a brother of the owner of the car, appear to have been seriously injured. All of the occupants of the car driven by Miss Lloyd, with the exception of Carero, were injured. These injuries will be referred to later.

Carero and Miss Lloyd instituted an action against Thomas J. Breslin for damages to their car. In this action Miss Lloyd also sued to recover damages for the personal injuries which she had received. Clarence Lloyd and Ann Lloyd instituted another action against Mr. Breslin to recover damages for the personal injuries which they had received. Carero obtained a verdict for $200. Miss Lloyd received a verdict for $3,500. Clarence Lloyd was awarded $10,000, and Ann Lloyd $2,000.

The first point argued under the rules for the defendant is that the trial judge should have nonsuited the plaintiffs. We think the trial judge ruled properly in refusing to grant a motion to nonsuit. The evidence given by the occupants of the Lloyd car has been referred to. From their testimony there was evidence of negligence upon the part of the driver of the Breslin car. This consisted principally of the speed at which the car was being driven and the manner in which the car made the left-hand turn; it being kept close to the southeast corner, instead of being driven out to the center of the Freehold road and making a wide turn. A trial court, in passing upon a motion to nonsuit, must refuse to grant the same if there be evidence offered by the plaintiff from which the jury can find negligence on the part of the defendant. This was the situation in the present case. The defendants, of course, presented contradictory testimony, namely, that the Cadillac car in which they were riding was going slowly on the proper side of the road and was run into from the left by the car driven by Miss Lloyd, which was being operated at a speed of 40 miles an hour. It was for the jury to pass upon the testimony presented.

The second point urged is that there should have been a nonsuit against Ethel Lloyd and Carero, because Ethel Lloyd was guilty of contributory negligence. This was a jury question from the evidence which has just been stated. The motion on this ground was properly denied.

The third point argued by the defendant is that verdicts should have been directed in favor of the defendant. What has been said with reference to the motion of nonsuit applies equally to this motion. The trial court ruled properly in refusing to direct verdicts for the defendant.

The fourth point argued by the defendant is with reference to a portion of the charge of the trial court. The trial judge told the jury that Mr. Breslin, the owner of the car, was the person who was responsible for the acts of his daughter who was driving the car. It is claimed that this was error. There is no dispute as to these facts. We think this portion of the charge of the trial judge was correct. Miss Breslin was driving the defendant's car and was driving it for his convenience.

The fifth point argued deals with the refusal of the trial court to charge a request that—

"If the plaintiffs were connected in a common enterprise, there could be no recovery against the defendant, even if the driver of the defendant's car was negligent, provided Miss Lloyd was negligent."

It will be observed that this request was general and applied to all the plaintiffs. The evidence was that the parents of Miss Lloyd were mere guests. There was no evidence that they were in any common enterprise. It was therefore proper for the court to refuse to charge the request. The trial judge did charge that Carero was affected by any negligence of Miss Lloyd. This was all that the defendant...