Fitzgerald v. DeMott

• Decision Date: 16 April 1925
• Docket Number: No. 18.,18.
• Citation: 128 A. 545
• Parties: FITZGERALD v. DeMOTT.
• Court: New Jersey Supreme Court

128 A. 545

FITZGERALD

v. DeMOTT.

No. 18.

Supreme Court of New Jersey.

April 16, 1925.

Appeal from Circuit Court, Bergen County.

Action by Nellie Fitzgerald against Richard H. DeMott. Judgment for plaintiff, and defendant appeals. Affirmed.

Argued January term, 1925, before GUMMERE, C. J., and PARKER and KATZENBACH, JJ.

Frank G. Turner, of Jersey City, for appellant.

Charles W. Hulst, of Englewood, for respondent.

PER CURIAM. Plaintiff and a party of friends, eight or ten in all, were walking on the right side of a country road, at night, when plaintiff was run into from behind by defendant's automobile going in the same direction with lights burning. Plaintiff had a verdict and judgment for damages, which we are asked to reverse on these grounds: (1) Refusal to nonsuit (a) because no negligence of defendant appeared; (b) because of contributory negligence of plaintiff. (2) Refusal to direct a verdict for defendant on the same grounds. (3) Refusal to order a mistrial because one of the witnesses, not responsively to any question, interjected something about photographs taken for an insurance company.

How a trial judge, under the circumstances of this case, could properly nonsuit or direct for the defendant, on questions either of negligence, or contributory negligence, is quite beyond our comprehension. As to the casual mention of insurance, it is sufficient to cite Bashaw v. Eichenberger (N. J. Err. & App.) 125 A. 130.

Judgment affirmed.