Corcione v. Zingerman, 80.

• Citation: 166 A. 506
• Decision Date: 27 April 1933
• Docket Number: No. 80.,80.
• Parties: CORCIONE et al. v. ZINGERMAN.
• Court: United States State Supreme Court (New Jersey)

166 A. 506

CORCIONE et al.

v. ZINGERMAN.

No. 80.

Court of Errors and Appeals of New Jersey.

April 27, 1933.

Appeal from Supreme Court.

Action by Jerry Corcione, by his next friend, Joseph Corcione, and others, against Ernest Zingerman. Judgment for plaintiffs, and defendant appeals.

Judgment affirmed as to named plaintiff, and reversed as to other plaintiffs.

Henry K. Golenbock, of Perth Amboy, for appellant.

Quinn, Parsons & Doremus, of Red Bank, for appellees.

WELLS, Judge.

This is an appeal from a judgment entered in the New Jersey Supreme Court on a verdict rendered by a jury in favor of the plaintiffs and against the defendant.

The case arose out of a collision of an automobile operated by defendant and a motorcycle upon which the infant plaintiff was riding.

Appellant argues two points for reversal:

1. The trial court erroneously instructed the jury.

2. The trial court erred in refusing to nonsuit the plaintiff and direct a verdict for defendant.

We shall consider the second point first.

At the conclusion of the plaintiff's case, defendant's counsel made a motion for a nonsuit on the ground that there had been no negligence shown on the part of the defendant and that the question of contributory negligence of plaintiff was a matter of law for the court to decide.

At that time there had been testimony to indicate that the plaintiff's motorcycle was being driven at a reasonable rate of speed on Stone road, Raritan township, immediately prior to the accident; that it was approaching the intersection of Stone road with Florence avenue at approximately twelve to fifteen miles an hour; that it was properly lighted; and that at the time of the crash the motorcycle of the plaintiff was further across the intersection than the car of the defendant.

There was additional evidence that immediately prior to the accident the car of the defendant was being operated on the left-hand side of the highway and was traveling at a speed of approximately sixty-five miles an hour; that as it approached the intersection it made a sharp swerve towards its right-hand side; that at this time the motorcycle of the plaintiff was almost across the road when the car of the defendant struck it, as it was about to leave the intersection.

There was evidence that the plaintiff was thrown a distance of approximately twenty feet in the direction in which the defendant was going and the car of the defendant continued after the collision to go on for about thirty or thirty-five feet and then struck a culvert and upset; that there were skid marks approximately seventy-five feet long, indicating where the brakes of the defendant's car had been applied.

Upon the refusal of the court to grant a nonsuit, the defendant proceeded with his case and called two witnesses as to the collision. One of these was a state trooper who arrived one hour after the accident, and who could shed no light upon its occurrence. The other was the defendant himself. The defendant's version of the accident was that his view was obstructed until he was approximately twenty feet from the corner when he saw the motorcycle which was about sixty feet away, and that thereupon he applied his brakes, which were in good order, but the motorcycle struck his car on an angle; that he was going less than thirty miles an hour on the right-hand side of the street and that he had the right of way, etc.

At the conclusion of the case, counsel for the defendant made a motion for the direction of a verdict on the grounds advanced in his motion for a nonsuit. This motion was also denied.

We think the question of the negligence of the defendant and the contributory negligence of plaintiff were clearly questions for the jury and that the motions to nonsuit and direct a verdict were properly denied.

The other point argued by appellant is that: "The trial court erred in instructing the jury that Mr. and Mrs. Corcione were entitled to the infant's earnings inasmuch as they stood in loco parentis to him."

That was not precisely what the court charged. The complaint alleged that Joseph and Mary Corcione were the parents of the minor plaintiff. The answer denied this allegation. The issue was, therefore, fairly raised.

The plaintiff Joseph Corcione failed to testify, and the only testimony in the plaintiff's case as to the parentage of Jerry is that of Mary Corcione. Nowhere does she positively declare that Jerry was her son.

Counsel for respondent very adroitly avoids asking her the direct question. After a few preliminary questions addressed to Mrs. Corcione, she was asked this question by her counsel: "Now, how many children have you besides Jerry?" She answered: "Six, and one niece I am taking care of." The inference sought to be conveyed to the minds of the jury was, of course, that Jerry was one of her children.

On the other hand, the defendant produced Mrs. De Genito, her husband Gennardo De Genito, and Herman De Genito, their son, all of whom testified that Jerry was a brother of Mary Corcione and that Mr. and Mrs. De Genito were his parents. This testimony was not denied by either Mary or Joseph Corcione. The jury did not have the benefit of the birth certificate and church records offered by the defendant, because they were not properly certified and could not be admitted in evidence.

The uncontradicted testimony was that Jerry lived with Mr. and Mrs. Corcione, that he usually gave Mrs. Corcione his earnings, and that the medical and hospital bills were made out to Joseph Corcione.

In this situation the court undertook to instruct the jury as to the right of Mr. and Mrs. Corcione to recover damages.

The appellant took several exceptions to the court's charge, which are the basis for the fifth, sixth, seventh, and eighth grounds of appeal. These we shall deal with in...