Clerici v. Gennari

• Decision Date: 26 March 1926
• Docket Number: No. 139.,139.
• Citation: 132 A. 667
• Parties: CLERICI v. GENNARI et al.
• Court: New Jersey Supreme Court

132 A. 667

CLERICI

v. GENNARI et al.

No. 139.

Court of Errors and Appeals of New Jersey.

March 26, 1926.

(Syllabus by the Court.)

Black, Campbell, and Kalisch, JJ., dissenting.

Appeal from Supreme Court.

Action by William Clerici, by Vittorio Clerici, his next friend, against Amelicone Gennari and another. Judgment for the plaintiff, and defendants appeal. Reversed.

Isaacs & Gunther, of Union City, and L. Edward Herrmann, of Jersey City, for appellants.

William F. Burke, of Union City (John H. Sheridan, of Union City, of counsel), for respondent.

KATZENBACH, J. The respondent, the plaintiff, below, a lad between 14 and 15 years of age, instituted this suit to recover damages for personal injuries received by him as a result of being struck by a motor truck owned by one of the defendants below, and operated by the other defendant, a son of the owner. The accident of which the plaintiff's injuries were the result was alleged to be due to the negligent operation of the truck. The action was brought in the Supreme Court, tried at the Hudson circuit, and resulted in a verdict and judgment for the plaintiff. The defendants below have appealed the judgment to this court.

The defendants in their answer set up as one of the defenses to the action that the plaintiff was guilty of contributory negligence. At the conclusion of the testimony offered in behalf of the plaintiff, counsel for the defendants moved for a nonsuit. One of the grounds urged was the contributory negligence of the plaintiff. The motion was denied. An exception to this ruling was taken. At the conclusion of the testimony a motion was made to direct a verdict for the defendants. The contributory negligence of the plaintiff was made one of the grounds for this motion, which was denied. An exception to this ruling was taken. The appellants principally rely upon these rulings of the trial judge with reference to the contributory negligence of the plaintiff for a reversal of the judgment. They insist that the testimony shows that the plaintiff's own negligence contributed to the injury for which he brought suit. The consideration of this contention on the part of the appellants makes necessary a statement of the circumstances under which the accident occurred.

The accident occurred upon Paterson avenue in the town of West Hoboken, about 10 feet from the intersection of Paterson avenue with West street. Paterson avenue runs approximately east and west. West street runs approximately north and south. Upon Paterson avenue there is a single track street railway located in the center of the street. The sidewalk on the northerly side of Paterson avenue is 8 feet wide. The distance between the curb and the most northerly rail of the street railway track is about 8 feet. At the northwest corner of Paterson avenue and West street is located a factory building. The plaintiff and several companions of about the same age were, on June 5, 1924, at 5:30 p. m., playing ball in Paterson avenue. The day was clear. It was still daylight. The game was played by one of the boys batting or throwing the ball against the Paterson avenue side of the factory building. The other boys would endeavor to catch it upon the rebound. The boys seeking to catch the ball were lined up facing the building against which the ball was thrown. One stood on the sidewalk, another immediately back of him, another back of the second boy, and the fourth boy stood almost across the street. The plaintiff at the time of the accident stood in the street about 3 or 4 feet away from the northerly sidewalk. The ball was batted against the wall. It rebounded toward the plaintiff, but at such a distance above his head that, in order to catch it, or to make an effort to catch it, it was necessary for him to run backwards. As the plaintiff was in the act of running backwards, the Ford motor truck was being driven westwardly on Paterson avenue with its right-hand wheels to the north of the most northerly rail. The plaintiff as he ran backwards came in contact with the truck and was injured. The plaintiff claimed that the truck was being negligently driven. We feel it unnecessary for us to review the testimony upon the question of whether or not the defendants below were guilty of negligence in the operation of the truck, as the evidence of the plaintiff's contributory negligence is so clear as to permit us to dispose of the present appeal on this question.

The testimony, as to what the plaintiff did, is uncontradicted. He testified that he ran out from the wall backwards to catch the ball. He was in the part of the street used by vehicles when...