Daly v. Singac Auto Supply Co.

• Decision Date: 31 January 1927
• Docket Number: No. 60.,60.
• Citation: 135 A. 868
• Parties: DALY v. SINGAC AUTO SUPPLY CO.
• Court: New Jersey Supreme Court

135 A. 868

DALY

v. SINGAC AUTO SUPPLY CO.

No. 60.

Court of Errors and Appeals of New Jersey.

Jan. 31, 1927.

(Syllabus by the Court.)

Appeal from Circuit Court, Passaic County.

Action by Michael Daly against the Singac Auto Supply Company. From a judgment for plaintiff, defendant appeals. Affirmed.

Heine, Bradner & Laird, of Newark, for the appellant.

Michael J. Murphy and Arthur C. Dunn, both of Paterson. for respondent.

BLACK, J. The trial of this cause resulted in a verdict and judgment for the plaintiff, The cause of action was based upon a charge of negligence made against the defendant. The injury to the plaintiff was caused while he was standing on the right-hand side of the Newark-Pompton turnpike road, on April 9, 1924, between 9 and 10 o'clock in the evening. The plaintiff was standing just in front of a Ford automobile truck, in which he had been riding for a demonstration. The truck was stalled, standing on the right-hand side of the road, with the left rear wheel partly on and partly off the amesite. A car driven by John Joyce crashed against the rear of the automobile truck of the defendant, the Singac Auto Supply Company, with such sudden force, that it propelled the Ford truck against the plaintiff, causing his injuries.

The grounds of appeal are without legal merit. They call for no discussion, except, perhaps the third; viz., the trial court erred in refusing to grant a nonsuit on the grounds, first, no negligence was shown on the part of the defendant; second, the plaintiff was guilty of contributory negligence. A summarized statement of the essential facts will reveal a condition which shows that a jury question was involved in both points. It was therefore not error for the trial court to refuse the motion. As stated, the plaintiff was injured while standing in front of the Ford automobile truck on the right-hand side of the Newark-Pompton turnpike road. The plaintiff was negotiating for the purchase of a Ford automobile truck, and, having made a selection, the defendant arranged for a demonstration and invited the plaintiff to enter the auto track, which he did. The plaintiff before entering the truck noticed that the lighting device did not work and called the attention of the defendant to that fact. Something was then done, or attempted to be done, by the defendant's mechanic to remedy this defective condition of the truck. After attempting to fix the lighting apparatus, the plaintiff with a companion entered the truck, and the defendant's servant drove the truck from the garage out on the highway to demonstrate it to the plaintiff. When about 300 yards out, the truck "stalled," partly off the amesite, with its rear extending over the amesite at an angle. The lights went out when the auto truck stalled. Record, p. 19. p. 31, line 34, p. 49. The plaintiff got out of the truck to permit the operator to get out and crank it. He stood on the side...