Dobrzynski v. Liveright

• Decision Date: 22 September 1937
• Docket Number: No. 13.,13.
• Citation: 118 N.J.L. 589,194 A. 160
• Parties: DOBRZYNSKI et al. v. LIVERIGHT et al.
• Court: New Jersey Supreme Court

194 A. 160

118 N.J.L. 589

DOBRZYNSKI et al.

v. LIVERIGHT et al.

No. 13.

Court of Errors and Appeals of New Jersey.

September 22, 1937.

Syllabus by the Court.

1. Held, under the testimony in this ease, a jury question was presented as to the contributory negligence of the infant plaintiff, and it was error to nonsuit on that ground.

2. The degree of care required of a child old enough to be capable of negligence is such as is usually exercised by persons of similar age, judgment, and experience, and usually it is a question for the jury to determine whether such a child has been guilty of contributory negligence.

Appeal from Circuit Court, Essex County.

Actions, consolidated for trial, by Virginia Dobrzynski, an infant, by Barbara Dobrzynski, her next friend, and Barbara Dobrzynski, individually against Max Liveright and Alvin A. Bell, and against Alvin A. Bell. From judgments of nonsuit, the plaintiffs appeal.

Judgments reversed for venire de novo.

Benjamin Gittleman and Benjamin M. Ratner, both of Newark, for appellants. Cox & Walburg, of Newark, for respondents.

DONGES, Justice.

This is an appeal of the plaintiffs from a judgment of nonsuit in two cases consolidated for the purpose of trial and also for appeal, the one being against Alvin A. Bell alone and the other against Max Liveright and Alvin A. Bell.

At the trial it appeared that the infant plaintiff's case, as exhibited by her own testimony, was that on February 17, 1934, she had attended a motion picture show on Belmont avenue, Newark, at a theater on the westerly side of that street, between Eighteenth avenue and Rose street; that she was an infant 14 years of age; that at 4 o'clock in the afternoon of that day she came out of the theater and desired to cross to her home, which was slightly to the right on the easterly side of Belmont avenue; she testified: "I went to the end of the sidewalk and looked up and down. There was a stop light on 18th avenue. I looked up and down the street; there was no car in sight. I started to cross the street and come to the first car tracks; I looked again and there was no car in sight until I come to the last car track, then I seen the car coming 8 houses away." Her testimony further disclosed that when she was at the last or easterly rail she concluded that she could cross in safety, so she accelerated her pace and proceeded, at the same time veering slightly to her right in order to pass between cars parked at the curb on the east side of the street; that she took several steps and was struck at or near the middle of the roadway between the easterly rail and the easterly curb by the right front of the automobile owned by defendant Liveright and operated by defendant Bell. There was testimony that there was no signal by horn; that the automobile was being operated at excessive speed; that Bell said he saw plaintiff in the middle of the street when he was a considerable distance away and assumed she would stop and did nothing to slacken his speed until about 12 feet from her, when he applied the brakes; that the car skidded on the slippery street and he struck the plaintiff and dragged her about 18 feet.

The trial judge held that the girl was guilty of contributory negligence as a...