Conway v. Pickering

• Decision Date: 05 May 1933
• Docket Number: No. 86.,86.
• Parties: CONWAY v. PICKERING et al.
• Court: New Jersey Supreme Court

166 A. 76

CONWAY

v. PICKERING et al.

No. 86.

Court of Errors and Appeals of New Jersey.

May 5, 1933.

Appeal from Circuit Court, Camden County.

Action by Lena Conway against George Pickering, the Courier-Post Company, and another. From a judgment of nonsuit as to defendant company, plaintiff appeals.

Reversed and venire de novo awarded.

Benjamin M. Cohen, of Camden (Albert E. Burling, of Camden, of counsel), for appellant,

Norman W. Harker, of Mount Holly, for respondent Courier-Post Co.

LLOYD, Justice.

Mrs. Conway, the plaintiff below, was crossing the Camden approach to the Delaware river bridge in Camden when she was struck by an automobile owned by the Courier-Post Company and operated by the defendant Wiegand. She instituted an action against the owner, the operator and Pickering who was the regular chauffeur of the defendant company. On the trial of the case and at the conclusion of the plaintiff's proofs, a nonsuit was granted as to the Courier-Post Company and the plaintiff appeals from the judgment entered thereon.

From the plaintiff's proofs the jury might have found the following facts: On the night of July 5, 1929, Pickering, having broken his glasses, procured the services of Wiegand to drive the car for him; this without the knowledge or approval of the Courier-Post Company. As the automobile, a Pontiac coupe, was returning from Philadelphia it stopped at the toll gate at the Camden end of the bridge and paid toll. At this time the traffic light of the crossing was against it. Disregarding this, Wiegand started the car up and collided with the plaintiff who was attempting to cross the street.

Pickering at the time was seated beside the driver and his testimony is somewhat conflicting as to what he was doing, part of it indicating that he was sorting materials in the car, and part of it indicating that he was observing the movement of the car and what was in front of it. He made no effort to restrain the driver in moving against the traffic light.

Under this state of the proofs we think the nonsuit was wrong. The ownership of personal property (and, of course, this includes an automobile) carried with it a presumption that it is within the control and operation of the owner, or his servant, and to overcome this presumption the evidence must be "clear, convincing, and uncontradicted" that such control did not exist. Such is the doctrine in this court as laid down in numerous cases. Missell v. Hayes, 86 N. J. Law, 348, 91 A. 322; Mahan v. Walker, 97 N. J. Law, 304, 117 A. 609; Tischler v. Steinholtz, 99 N. J. Law, 149, 122 A. 880.

In the present case the evidence to relieve the owner was not of that clear, convincing, and uncontradicted character which justified the withdrawal of the question from the jury,...