Dooley v. Saunders U-Drive Co.

• Decision Date: 17 October 1932
• Docket Number: No. 99.,99.
• Citation: 162 A. 556
• Parties: DOOLEY v. SAUNDERS U-DRIVE CO.
• Court: New Jersey Supreme Court

162 A. 556

DOOLEY

v. SAUNDERS U-DRIVE CO.

No. 99.

Court of Errors and Appeals of New Jersey.

Oct. 17, 1932.

Syllabus by the Court.

1. Held, that the proofs as to contributory negligence were such as to require the submission of that question to the jury, and therefore it was not error to refuse to nonsuit upon that ground.

2. Proof of ownership of an automobile driven on a public highway raises a presumption of fact that such automobile was in the possession of the owner, if not personally, then through his servant, the driver, and that such driver was acting within the scope of his employment. Both or either of these presumptions may be overcome by uncontradicted proof to the contrary, and if so overcome by uncontradicted proof, or proof not admitting of contradictory interpretation, a motion for a direction of a verdict for the owner should be granted. Doran v. Thomsen, 76 N. J. Law, 754, 71 A. 296, 19 L. R. A. (N. S.) 335, 131 Am. St. Rep. 677; Mahan v. Walker, 97 N. J. Law, 304, 117 A. 609; Crowell v. Padolsky, 98 N. J. Law, 552, 120 A. 23; Tischler v. Steinholtz, 99 N. J. Law, 149, 122 A. 880; Maurer v. Brown, 106 N. J. Law, 284, 149 A. 336; Patterson v. Surpless, 107 N. J. Law, 305, 151 A. 754.

Appeal from Supreme Court.

Action by William Dooley against the Saunders U-Drive Company and othersl Judgment for plaintiff, and named defendant appeals.

Reversed.

John A. Laird, of Newark, for appellant.

William Herda Smith, of Newark, for respondent.

CAMPBELL, Chancellor.

This is an appeal from a judgment in favor of the plaintiff below, who, while crossing a highway, was struck and injured by an automobile operated by one Philip Canizza, one of the defendants below. The Saunders U-Drive Company, alone appeals from the judgment, and assigns three grounds why such judgment should be reversed.

The first of these grounds is that the trial court erred in refusing to nonsuit the plaintiff.

The only reason advanced upon this motion was that the plaintiff below was guilty of negligence as a matter of law, which negligence contributed to the happening.

Our consideration of the proofs does not bring us to this conclusion, but, on the contrary, that they presented a jury question. The result reached by us upon this ground, therefore, is that there was no error in refusing to grant the motion to nonsuit.

The second ground for reversal is that the trial court erred in refusing to direct a verdict in favor of the appellant in that respect we find there was error. The motion to direct was placed upon the ground that there was no proof showing that the appellant was in any manner responsible or legally liable for the happening. The driver of the car testified that he hired the car from the appellant, and that in the use and operation of the car he was in and about his own business, affairs, and pleasure.

The learned trial judge took the position that, it having been shown that the car was owned by the appellant, and the testimony of the driver, being all that there was to overcome the presumption that it was being operated for the owner as laid down in Mahan v. Walker, 97 N. J. Law, 304, 117 A....