Prosequendum v. Chester

• Court: New Jersey Supreme Court
• Writing for the Court: Per Curiam.
• Citation: Prosequendum v. Chester, 144 A. 322, 7 N.J.Misc. 131 (N.J. 1929)
• Decision Date: 16 January 1929
• Docket Number: 73
• Parties: CAROLINE M. DEVINE, ADMINISTRATRIX AD PROSEQUENDUM, PLAINTIFF, v. RALPH L. CHESTER, DEFENDANT

144 A. 322

DEVINE

v. CHESTER.

No. 73.

Supreme Court of New Jersey.

Jan. 16, 1929.

Action by Caroline M. Devine, administratrix ad pros., against Ralph L. Chester. On defendant's rule to show cause, after verdict for plaintiff. Rule discharged.

Argued May term, 1928, before GUMMERE, C. J., and PARKER and KATZENBACH, JJ.

Bourgeois & Coulomb, of Atlantic City, for the rule.

Patrick H. Harding, of Camden, opposed.

PER CURIAM. This case is before this court upon a defendant's rule to show cause. It is a death case. Caroline M. Devine, as administratrix ad pros, of the estate of John Devine, instituted suit against Ralph L. Chester to obtain damages for the death of John Devine, who was struck and fatally injured by the defendant's automobile. The accident occurred on December 4, 1926, at Fifth and Asbury avenues, in the city of Ocean City. Devine had ridden from Somers Point in a car owned by a friend and driven by a chauffeur. Asbury avenue parallels Ocean avenue, one block distant. It runs approximately east and west. It is crossed by streets designated as Fourth, Fifth, Sixth streets, etc. Devine lived at 426 Asbury avenue, which is south of Fifth street. The car in which he had come from Somers Point stopped on the right-hand side of Asbury avenue. This is the ocean side. Devine alighted. He, spoke for a brief space of time to those in the car. He then started to cross Asbury avenue to the other side of the street where he lived. He passed back of his friend's car, which at that time started to move. Devine passed the center line of Asbury avenue, and was approaching the opposite curb when he was struck by the automobile of Chester, which was being driven by Chester. The right-hand fender struck Devine. He died two days later at the Atlantic City Hospital. The defenses to the action were: First, contributory negligence on the part of Devine; and, second, absence of negligence on the part of the defendant. The defendant contended that he was temporarily blinded by the bright headlights of an approaching automobile, and was thus unable to see Devine.

With reference to the question of contributory negligence, the facts presented are not similar to the case relied upon by the defendant of Conrad v. Green (N. J. Sup.) 94 A. 390 (not officially reported). In this case the plaintiff was crossing West State street in the city of Trenton, and in doing so passed directly in front of a west-bound trolley car which was stationary. Conrad's vision of...