Church v. Diffany

• Decision Date: 05 February 1940
• Docket Number: No. 66.,66.
• Citation: 11 A.2d 55,124 N.J.L. 100
• Parties: CHURCH v. DIFFANY.
• Court: New Jersey Supreme Court

11 A.2d 55

124 N.J.L. 100

CHURCH

v. DIFFANY.

No. 66.

Court of Errors and Appeals of New Jersey.

Feb. 5, 1940.

The CHANCELLOR, and DONGES, HEHER, and PERSKIE, Justices, and WOLFSKEIL, RAFFERTY, and HAGUE, Judges, dissenting.

Appeal from Supreme Court.

Action by Anna Church, administratrix ad prosequendum and general administratrix of the estate of James F. Church, deceased, against Henry Diffany, for death of deceased who came in contact with automobile driven by defendant. From the judgment, the plaintiff appeals.

Affirmed.

Heine, Peer, Laird & Mahr, of Newark, for plaintiff-appellant.

Colie & Schenck, of Newark, for defendant-respondent.

WELLS, Judge.

This is an appeal from a judgment of the Supreme Court, Essex Circuit, based on the granting of a motion for nonsuit in favor of the defendant-respondent, and against the plaintiff-appellant.

During the noon hour on October 2, 1936, the defendant, Diffany, was driving his car in a northerly direction on Plane Street in Newark, and made a left hand turn westerly into Academy Street. At the same time the plaintiff's decedent, Church, was walking in a southerly direction on the west side of Plane Street, and was about to cross the intersection of Plane Street and Academy Street. There were traffic lights at this intersection.

The testimony indicates that in some way Church and the Diffany car came in contact at a point on the right side of the car where the spare tire was located, and Church fell backwards into the street. Diffany stopped his car with the rear just over the crosswalk, and Church walked in back of it and sat on the running board of another car parked on the south side of Academy Street. Medical testimony shows that Church sustained a fractured hip and that the trauma which produced the fracture also produced other internal conditions which led to his death.

There were apparently no witnesses to the accident other than the defendant, Diffany, and the decedent, Church. At the trial the plaintiff's proof of negligence was based entirely on statements made by Diffany to certain police officers, and the observations of the officers and one Thomas Reilly, each of whom arrived on the scene some time subsequent to the accident. At the close of the plaintiff's case a motion for nonsuit was made and granted, resulting in the judgment from which this appeal is taken.

The plaintiff-appellant relies generally on two grounds of appeal: (1) that the court erred in sustaining objections to certain questions asked on direct examination; and (2) that the court erred in granting the motion for nonsuit.

During the course of examining the witness Reed, a police officer, the plaintiff's counsel asked what the decedent had said in the presence of the defendant, Diffany. This was objected to and the objection sustained. Despite the statement in the plaintiff's grounds of appeal that an exception was noted, an examination of the record reveals that this is not so. Under such circumstances this question is not properly before the court and cannot be considered on appeal. Spatuzzi v. Star Auto Trust Exchange, Inc., et al, 119 N.J.L. 377, 196 A. 723.

The other alleged error to be considered under the first general ground of appeal occurred during the direct examination of the witness Reilly. Referring to the decedent, plaintiff's counsel asked?quot;As you saw him sitting there, did he say anything to you?" The answer was?quot;No. I walked up to him. I saw him sitting there and I said, 'Jim' * * * *'. At this point an objection was made, and the fact that it was sustained is alleged by the plaintiff to be reversible error.

It is somewhat difficult to determine the point in controversy here. The only question asked was as to any statement made by the decedent, and this was fully answered by the reply, "No." The rest of the answer was entirely voluntary on the part of the witness, and not responsive to any question which had been propounded.

Plaintiff's counsel did not see fit to repeat the question as to whether decedent had said anything to the witness. We find no error on the part of the trial Court in sustaining the objection to that part of the answer which was manifestly not responsive.

The second general ground of appeal, as above stated, alleges that the trial court erred in granting the motion for nonsuit. Reliance is placed upon the doctrine as enunciated in the case of Kerner v. Zerr, 103 N.J.L. 424, 135 A. 866, to the effect that: "A motion for a nonsuit admits the truth of the plaintiff's evidence, and of every inference of fact that can be legitimately drawn therefrom, but denies its sufficiency in law. * * * So it is for the trial judge, when requested to nonsuit, to say whether any facts have been established by evidence from which negligence may be reasonably inferred. If none, there is no case to go to a jury; but, if from facts established negligence may...