Ceccomancino v. D'Onofrio

• Decision Date: 27 September 1933
• Docket Number: No. 172.,172.
• Citation: 168 A. 578
• Parties: CECCOMANCINO et al. v. D'ONOFRIO et al.
• Court: New Jersey Supreme Court

168 A. 578

CECCOMANCINO et al.

v. D'ONOFRIO et al.

No. 172.

Court of Errors and Appeals of New Jersey.

Sept. 27, 1933.

Appeal from Supreme Court.

Action by Josephine Ceccomancino, by her next friend Mary Ceccomancino, and others against Anthony D'Onofrio and others. From an adverse judgment, defendant San) Kosher appeals.

Affirmed.

Mark Townsend, Jr., of Jersey City, for appellant Sam Kosher.

O'Neill & Broderick, of Newark, for respondents.

WELLS, Judge.

This is an appeal by the defendant Sam Kosher from the judgment entered in the Supreme Court, Morris county circuit, on verdicts rendered in favor of the plaintiffs, aggregating $1,781, against the defendants Sam Kosher and Sam Berger.

The actions were brought by the plaintiffs-respondents (hereinafter referred to as the plaintiffs) to recover damages for the personal injuries sustained by them as a result of a collision between a Ford sedan, in which they were riding, and the automobiles of the defendants Sam Kosher and Sam Berger.

There were four defendants: Anthony D'Onofrio, in whose car the plaintiffs were riding; Sam Kosher, the appellant, who was the driver of one of the cars figuring in the accident; Sam Berger, the driver; and Dora Berger, the owner of the third car.

A nonsuit was entered as to the defendant Dora Berger, and the case was apparently not pressed against the defendant D'Onofrio. Only Sam Kosher appeals.

The accident occurred about midnight, July 17, 1932, between Mt. Freedom and Morristown N. J., on the "Mount Freedom Road," an Improved highway 16 feet in width. The plaintiffs were returning to their home in Dover, N. J., from a trip to New York and Coney Island and were proceeding in a Ford sedan, owned and operated by D'Onofrio, in a northerly direction toward Mt. Freedom. The defendant Sam Berger and appellant Sam Kosher were coming from Mt. Freedom to their homes in Union City, N. J., and proceeding in separate automobiles; Kosher following Berger, in a southerly direction, when the automobile of Berger came into contact with D'Onofri(Vs Ford and immediately thereafter a second collision occurred between the car of appellant and the Ford of D'Onofrio, resulting in the injuries for which the judgments appealed from were awarded.

The appellant sets down three grounds of appeal: First, that the court erred in not granting, at the conclusion of the plaintiffs' case, the appellant's motion for a nonsuit; and, second, because the court erred in not granting, at the conclusion of the whole case, the appellant's motion for a direction of a verdict. Both motions were based on the ground that there was no evidence of negligence on the part of the appellant. As to these two points, which may be dealt with together, there was testimony from which the jury could find that the car in which the plaintiffs were riding was traveling on its right side of the road up a long hill slowly, in first or second gear, and that D'Onofrio, the driver, observed Berger's car about 300 feet away, coming toward him at a fast rate of speed, as was indicated by its bobbing headlights, and when the Berger car reached a point about 25 feet away from the D'Onofrio car it swerved to its left side of the road and struck the D'Onofrio car a glancing blow, turning it slightly to the left, and almost immediately thereafter, and while the D'Onofrio car was still on its right side of the highway, appellant's car, closely following the Berger car, crashed into the D'Onofrio car with such violence as to turn it over three times; that the Berger car continued after the impact down the road 100 to 150 feet, and appellant's car 75 to 90 feet, while the D'Onofrio ear stopped almost at the place of the accident, and still on its right side of the roadway.

The appellant, by way of defense, adduced testimony tending to show that he was driving his car along the Mt. Freedom road, a distance of about 40 to 50 feet behind the car driven by his friend, Sam Berger, at a speed of about 20-25 miles an hour and on the right side of the road; that he saw the car in which the plaintiffs were riding coming towards him, in front of Berger's car, but where on the highway he did not know; that the car in which the plaintiffs were riding clipped Berger's car, which was on its right side of the road, and then, before appellant knew anything, felt himself toppling over; but at the time of the collision with the car in which plaintiffs were riding appellant was on the right side of the road; that the accident happened so quickly he didn't have an opportunity to apply his brakes, although he could stop his car within a distance of 15 feet and in an emergency, less than that; that the D'Onofrio car went 140-150 feet up the hill after the accident before it stopped. There was conflicting testimony as to the skid marks; by which car made, and what they indicated.

Appellant, in his attempt to escape the charge of negligence made against him by the plaintiffs and place the responsibility for the accident solely on the negligence of D'Onofrio, puts great stress on the admission of D'Onofrio that he did not see appellant's car on the highway until after Berger's car and D'Onofrio's car had come in contact, although he admitted that he could see for some distance in the direction from which appellant's car came on the night of the accident.

Assuming that negligence on the part of D'Onofrio might be inferred from this testimony, the trial court was confronted with the fact that the inference also could be legitimately made that the reason D'Onofrio and the plaintiff Mary Ceccomancino did not see appellant's car was that it was following too closely behind the Berger car to be seen, and that under the circumstances of the case it was the province of the jury and not the judge to determine what inferences should be drawn.

Appellant insists all that the evidence shows is that an accident occurred; but that plaintiffs failed to prove by the preponderance of the evidence that appellant was negligent, and that it was this negligence which was the cause of the accident.

Appellant cites Parave v. Public Service Interstate Transportation Co., 109 N. J. Law, 155, 160 A. 375, 378, to the effect that as a general rule the mere showing of an accident causing the injuries sued for is not alone sufficient to authorize an inference of negligence; that negligence is a fact which must be shown. It will not be...