Feury v. Reid Ice Cream Co.

• Citation: 126 A. 462
• Parties: FEURY et al. v. REID ICE CREAM CO. et al.
• Decision Date: 07 October 1924
• Court: New Jersey Supreme Court

126 A. 462

FEURY et al.

v. REID ICE CREAM CO. et al.

Supreme Court of New Jersey.

Oct. 7, 1924.

Action by one Feury and another against the Reid Ice Cream Company and another. Verdict for plaintiffs. On defendants' rule to show cause. Rule discharged on condition of remittitur. Argued May term, 1924, before GUMMERE, C. J., and PARKER and KATZENBACH, JJ.

Ziegener & Lane, of Jersey City, for plaintiffs.

Marshall Van Winkle, of Jersey City, for defendants.

PER CURIAM. The infant plaintiff, a child of about 4 1/2 years, was run over in Monticello avenue, Jersey City, by an auto truck belonging to the defendant Reid Ice Cream Company and driven by the defendant Hasse. The father appearing as next friend also sued for damages per quod. The child lost one leg at the knee joint. The jury rendered a verdict of $25,000 in favor of the infant plaintiff and $3,000 for the father against the ice cream company alone, without making any finding either for or against the defendant Hasse. Both defendants ask for a new trial, and this, partly because the record is defective in failing to exhibit a verdict as respects the liability of Hasse. As to the application of Hasse for a new trial, we cannot see that any harm has been done him up to this time. It would appear that if there was no verdict either for or against him, his case has never been fully tried, and the situation is as though there had been a mistrial. At all events, no new trial can be awarded on his application.

As to the Reid Ice Cream Company, we are likewise unable to see that it is legally injured by the failure of the jury to make any finding as respects the guilt of a codefendant joined as a joint tort-feasor, especially as the Reid Company is distinctly charged with negligence in failing to have the brakes of the car in good order, something for which Hasse normally would not be responsible. Defendant's counsel cites a number of cases which he claims establish the proposition that a failure to find a verdict against the servant amounts to an exoneration of the servant, and that this, in effect, bars the jury from finding against the master; but we are unable to read any such deduction from an examination of the cases cited and, consequently, are of the opinion that the verdict should not be disturbed on any such ground.

The charge of the court on contributory negligence upon the part of a young child is challenged, but we think that the rule in this respect was correctly charged.

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