Crowell v. Padolsky

• Decision Date: 05 March 1923
• Docket Number: No. 37.,37.
• Parties: CROWELL et al. v. PADOLSKY.
• Court: New Jersey Supreme Court

120 A. 23

CROWELL et al.

v. PADOLSKY.

No. 37.

Court of Errors and Appeals of New Jersey.

March 5, 1923.

(Syllabus by the Court.)

Appeal from Supreme Court.

Action by Jessie L. Crowell and husband against Hyman Padolsky. From a judgment for plaintiffs, defendant appeals. Affirmed.

John W. McGeehan, Jr., of Newark, for appellant.

John W. Palmer, of Newark, for respondents.

WHITE, J. The plaintiff, Mrs. Crowell, was injured on Avon avenue, Newark, by being backed into by a jitney automobile behind which she was passing while it was standing still at the curb. She and another witness took notice of and testified to its New Jersey license number, and also to its municipal license number, which were the numbers of defendant's auto-bus, thus justifying a finding of ownership in the defendant and thereby establishing a presumption of fact that at the time of the accident the bus was being operated on the public street by the defendant, its owner, or by his servant acting within the scope of the employment. Edgeworth v. Wood, 58 N. J. Law, 463, 33 Atl. 940; Mehan v. Walker (N. J. Err. & App.) 117 Atl. 609, citing Dennery v. Great Atlantic & Pacific Tea Co., 82 N. J. Law, 517, 81 Atl. 861, 39 L. R. A. (N. S.) 574; Missell v. Hayes, 86 N. J. Law, 348, 91 Atl. 322.

For the purpose of overcoming this presumption the defendant undertook to show by the testimony of himself and his chauffeur: First, that neither he nor his chauffeur was in fact driving the bus on the public streets at any time during the afternoon when the accident happened; and, second, that he had not authorized any one else to take the bus out that afternoon. It is now contended that this proof brought the case within the principle of Doran v. Thomsen, 76 N. J. Law, 754, 71 Atl. 296, 19 L. R. A. (N. S.) 335, 131 Am. St. Rep. 677, and that the court should have directed a verdict for the defendant on the theory, established by that case, that where the proof overcoming the presumption is uncontradicted, the question becomes one for the court and not for the jury.

The difficulty with this contention is that the defendant's proof went too far, for not only did he and his chauffeur and one or two other witnesses in his behalf testify that the bus was not being driven on the afternoon in question by the defendant nor by any servant of his acting within the scope of his employment, but all of them also testified that the bus was not out of defendant's private yard during the entire afternoon....