Dickerson v. Mutual Grocery Co.

• Court: New Jersey Supreme Court
• Writing for the Court: PARKER, J.
• Citation: Dickerson v. Mutual Grocery Co., 100 N.J.L. 118, 124 A. 785 (N.J. 1924)
• Decision Date: 19 May 1924
• Docket Number: 74
• Parties: OLIVER DICKERSON, RESPONDENT, v. MUTUAL GROCERY COMPANY, APPELLANT

124 A. 785

DICKERSON

v. MUTUAL GROCERY CO.

No. 74.

Court of Errors and Appeals of New Jersey.

May 19, 1924.

(Syllabus by the Court.)

Appeal from Supreme Court.

Action by Oliver Dickerson against the Mutual Grocery Company. From a judgment for plaintiff, defendant appeals. Affirmed.

M. Casewell Heine, of Newark (Palmer Bradner, of Newark, on the brief), for appellant.

Theodore Rurode, of Jersey City, for respondent.

PARKER, J. Plaintiff, while driving his own automobile, ran out of gasoline, and, having passed a gasoline station, decided to push the car back to it. So he gave the wheel to his wife, got out of the car and began to push it. The car had made the turn to the rear, and plaintiff was slowly pushing it toward the source of supply, when a servant of defendant, driving its car, came up behind, failed to see plaintiff's car until too late to avoid it, made an unsuccessful effort to swerve out to the left, and caught plaintiff between the front of defendant's car and the left rear mudguard of plaintiff's car. The suit was for personal injury, as the collision had caused a comminuted fracture of one leg resulting in a shortening of it and other physical injury. Plaintiff had a verdict and judgment for $5,000. It is claimed for appellant that the trial court should have nonsuited or directed a verdict for defendant, and that there was error in admitting in evidence the "Table of Mortality" contained in the rules of the Court of Chancery, and in the comment of the court thereon in the charge.

With respect to the denial of a nonsuit and of a direction, the customary grounds are urged, viz. that the evidence fails to point to any negligence on the part of defendant's servant, and, assuming there was such negligence, then that there was contributory negligence of plaintiff. An attempt is made to differentiate this case on the facts from the ordinary run of highway collision cases, in which, as has many times been said, the disposition of these questions of primary and contributory negligence is as a rule pre-eminently for the jury. It was a rainy, foggy night; there were, as claimed, shade trees interfering with the illumination by the usual street lights; defendant's driver had raised his windshield to see better; his headlights failed to penetrate the fog, and, according to his story, the first he saw of plaintiff's ear was the reflection from the glass of its rear window, at which time it was only seven feet away; that plaintiff was pushing his own car on the left side and so must have screened the tail light from the observation of defendant's driver; and so on. But the credibility of all this was for the jury, and there remained for solution the indubitable situation that plaintiff, on foot, pushing a dead car, had his leg crushed against it by a following car going at a speed as testified of seven miles an hour. The view taken by our courts of this class of cases is well illustrated by three very recent decisions. Osbun v. De Young (N. J. Err. & App.) 122 Atl. 809; Seibert v. A. Goldstein Co, (N. J. Err. & App.) 122 Atl. 821; and McCartney v. British American Metals Co. (N. J. Err. & App.) 124 Atl. 114. In each of these cases we held that a jury question was presented. In the first, there was a rear-end collision with plaintiff's standing car, which as claimed had no tail light. In the second, also a rear end collision, the plaintiff, driving the following truck, recovered against the owner of a stalled truck. In the third, defendant was held liable because the jury evidently found the absence of a tail light on its truck caused a collision between two other cars, one following the truck, the other passing it from the opposite direction. We see nothing in the present case to take it out of the usual rule that the finding of the facts and of the inferences of negligence to be drawn therefrom is for the jury.

The other point argued is to a certain extent novel. The plaintiff testified that he was 24 years old, that before the accident he had earned $30 a week, and since that time on account of his altered physical condition he could earn only $24 a week. So far, the usual course of proof was followed, and counsel would be expected to argue, and the court to charge, that, if this injury were found permanent, the jury could award such sum by way of damages as would fairly compensate plaintiff for this loss of wages, taking into consideration his age, health, and other relevant circumstances. But counsel for plaintiff undertook to give the jury something more definite to work on, by proof of figures based on the average expectancy of life of a man of his age; and offered in evidence the annuity table accredited by the rules of the Court of Chancery and printed in those rules and in Dickinson's Chancery Precedents (2d Ed.) p. cxii; the argument being that to purchase an annuity of $1 at age 24 would cost $15,418, and in proportion for $6 per week for 52 weeks, or $312 per annum. This table was authenticated...