Cella v. Roth

• Decision Date: 27 September 1934
• Docket Number: No. 117.,117.
• Citation: 174 A. 703
• Parties: CELLA et al. v. ROTH.
• Court: New Jersey Supreme Court

174 A. 703

CELLA et al.

v. ROTH.

No. 117.

Court of Errors and Appeals of New Jersey.

Sept. 27, 1934.

Appeal from Supreme Court.

Action by Joseph Cella, by his next friend, Adelina Cella, and another, against George Roth. From a judgment in favor of the plaintiffs, the defendant appeals.

Reversed.

Cox & Walburg, of Newark, for appellant.

Paul F. Cullum, of Union City, for respondents.

WELLS, Judge.

This is an appeal from a judgment entered in the Supreme Court in a negligence case on a verdict of a jury in favor of the plaintiff. The suit was instituted against George Roth and Vincenzo Matassa to recover damages for injuries sustained, July 27, 1932, by the infant plaintiff, Joseph Cella, a boy twelve years of age (hereinafter spoken of as plaintiff). His mother, Adelina Cella, sued to recover expenses incurred as the result of her son's injuries. The defendant Vincenzo Matassa was not served with the summons and complaint, and the case was tried against the defendant George Roth alone, resulting in a verdict against him for the sum of $2,400 in favor of Joseph Cella, and the sum of $300 in favor of Adelina Cella.

There was considerable difference between the version of the accident as given by the plaintiff and the version given by the defendant.

Both plaintiff and defendant, however, agree that the plaintiff was struck by an automobile owned and operated by Vincenzo Matassa which at the time of the accident was proceeding in a southerly direction on the Hudson County boulevard in North Bergen township (hereinafter spoken of as boulevard).

The original complaint alleged that the plaintiff at the time of the accident was crossing the boulevard from west to east on the southerly crosswalk and that he was struck in the center of the boulevard. This was also defendant's contention. The allegation was that the accident was caused by the joint negligence of Roth and Matassa.

At the trial, Matassa not appearing, the plaintiff's attorney moved to amend the complaint to allege that the plaintiff was crossing Hoboken street from south to north instead of crossing the boulevard from west to east.

The plaintiff's testimony tended to show that the defendant Roth was operating his automobile in an easterly direction up a steep incline on Hoboken street and that the plaintiff was crossing, on a green traffic light, Hoboken street from the south to the north side thereof, at the westerly side of the Hudson boulevard; that the defendant Roth, disregarding a red traffic light against him on Hoboken street, drove his automobile toward the plaintiff at a fast rate of speed, compelling the plaintiff to run out into the boulevard to avoid being struck by Roth's car, and causing plaintiff to be struck by the automobile of Matassa coming south on the boulevard.

The answer denied the material allegations of the complaint and set up two separate and distinct defenses: The first that the plaintiff was guilty of contributory negligence; and, the second, that "the alleged accident was due to the negligence of a third party, over whom this defendant had no control and for whose acts he is not responsible."

The defendant's version of the accident was that he came up Hoboken street toward the boulevard in second gear at about 15 to 20 miles per hour; the traffic light was red against him, and he came to a "dead stop," even with the sidewalk, on Hoboken street. He remained there a couple of minutes awaiting the traffic signal to change; that he did not enter the Hoboken street crosswalk or go out on the boulevard until the traffic light changed to green; that the plaintiff was at no time on the Hoboken street crossing nor in front of defendant's car, but the crossing was absolutely clear; that during this two-minute stop the accident occurred out on the boulevard.

He said that he saw a Ford car (the Matassa car) coming south in the middle of the boulevard, and that this car hit the plaintiff, and stopped after it passed the curb line about 25 feet; that a fellow jumped right out of the car and picked up the boy, who was lying across the southerly crosswalk (that is the one running west to east over the boulevard) about 12 to 15 feet out from the westerly curb, and went right off with the boy. This all happened in less than a minute and while defendant was at a standstill on Hoboken street.

On cross-examination defendant said the first time he saw the plaintiff was when he was falling on the pavement.

In this state of the evidence and with the undisputed proofs showing that Matassa's car, and not Roth's, had collided with the plaintiff, the court charged the jury that the burden of proof was upon the plaintiff to prove his case by the greater weight of the evidence, and that it was necessary for them to find that the defendant Roth was negligent and that his negligence was the proximate cause of the injury to plaintiff; and that, if it was through the negligence of Matassa and not through the negligence of Roth that the plaintiff was injured, Roth could not be held liable. After thus correctly charging the jury on the burden of proof, the court proceeded to discuss the separate defenses set up by the defendant, and charged the jury as follows: "There are two separate defenses as the court has mentioned, and in order for the defendant to be served with a verdict or receive a verdict according to those defenses, he is obliged to prove them by the greater weight of the evidence."

Then follows a reference to and explanation of contributory negligence, after which the court continued as follows: "If you come to the conclusion by the greater weight of the evidence that it was the negligence of this third party referred to by the court as...