Dobrow v. Hertz

• Decision Date: 10 October 1940
• Docket Number: No. 9.,9.
• Citation: 125 N.J.L. 347,15 A.2d 749
• Parties: DOBROW et al. v. HERTZ.
• Court: New Jersey Supreme Court

15 A.2d 749

125 N.J.L. 347

DOBROW et al.

v. HERTZ.

No. 9.

Court of Errors and Appeals of New Jersey.

Oct. 10, 1940.

Appeal from Supreme Court.

Action by Pauline Dobrow and others against Samuel Hertz and another for injuries sustained in an automobile accident. From an adverse judgment, plaintiffs Jack Lieberman and Ruth Lieberman appeal.

Reversed and new trial awarded.

J. Bernard Saltzman, of Passaic, for appellants.

Edward A. Harmon, of New York City (Maurice A. Roberts, of Newark, of counsel), for respondent.

PERSKIE, Justice.

This a suit allegedly based upon actionable negligence. The basic question requiring decision is whether the trial judge erred in directing a verdict of no cause of action in favor of the defendant Samuel Hertz.

On Saturday evening, January 16, 1937, Samuel Hertz, respondent here and defendant below, invited Jack Lieberman and Ruth Lieberman, his wife, appellants here and plaintiffs below, and two other friends, to accompany him and his wife to a show in New York. The party of six left Passaic, New Jersey, saw the show in New York, had supper there and sometime after 2:00 a. m., on Sunday, January 17, 1937, started their return trip. Defendant Hertz was driving. About 3:00 a. m., he was traveling over Paterson Avenue, in Wellington, N. J. He was going in a westerly direction on said highway when his car collided with the car which was driven on said highway, in an easterly direction, by Frederick G. Wilding, who was admittedly intoxicated. All four of Hertz's guests sustained injuries. All four commenced suit against Hertz and Wilding, but the latter was never served with process. The learned trial judge denied defendant's motion for a nonsuit, but at the end of the entire case directed a verdict of no cause of action in favor of the defendant Hertz. From the judgment so entered upon that verdict plaintiffs, above named, alone have appealed.

1. The applicable law is settled. In passing upon a motion to direct a verdict, just as in passing upon a motion for a nonsuit, the evidence will not be weighed. The party against whom the motion is made is entitled to all the evidence in his favor and all the legitimate inferences to be drawn therefrom treated as true. When fair minded men may honestly differ as to the conclusion to be reached from that evidence, controverted or uncontroverted, the case must be submitted to the jury. Repasky v. Novich, 113 N.J.L. 126, 172 A. 374; Christine v. Mutual Grocery Co., 119 N.J.L. 149, 151, 152, 194 A. 625. A verdict may be directed in favor of one party only when the evidence, together with the legitimate inferences to be drawn therefrom is such that no view which the jury might lawfully take of it favorable to the other party would be sustained. Sardino v. Agnellino, 119 N.J.L. 7, 194 A. 137.

With these principles in mind, we turn to the evidence in the case at bar. We shall not attempt to state it in detail. Suffice it to observe that the circumstances immediately preceding the accident are sharply controverted. But accepting as true all of the evidence in favor of the plaintiffs and granting to the plaintiffs all legitimate inferences to be drawn therefrom, we find that there is proof to the effect that defendant "was anxious to get home" because the Hertzs had left their children alone at home; that defendant's attention, shortly prior to the accident, had been called to the fact that he was traveling "pretty fast;" that defendant first saw the Wilding car when it was about "a...