Fox v. Great Atl. & Pac. Tea Co.

• Decision Date: 18 June 1913
• Parties: FOX et ux. v. GREAT ATLANTIC & PACIFIC TEA CO.
• Court: New Jersey Supreme Court

87 A. 339

84 N.J.L. 726

FOX et ux.

v. GREAT ATLANTIC & PACIFIC TEA CO.

Court of Errors and Appeals of New Jersey.

June 18, 1913.

Gummere, C. J., and Parker, Vredenburgh, Terhune, and Heppenheimer, JJ., dissenting.

Appeal from Supreme Court.

Action by Joseph Fox and Lena Fox, his wife, against the Great Atlantic & Pacific Tea Company. Judgment for plaintiffs, and defendant appeals. Affirmed.

Griggs & Harding, of Paterson, and Charles G. Signor, of New York City, for appellant.

Collins & Corbin, of Jersey City, for respondents.

KALISCH, J. The plaintiffs, husband and wife, recovered a judgment against the defendant for damages sustained by them resulting from personal injuries received by the wife through the defendant's alleged negligence.

The facts are briefly these: The defendant's servant was driving a motor truck, in the daytime, along a public street in Jersey City. This street runs east and west. Lena Fox was crossing from the northerly to the southerly side of the street, in a diagonal direction, in the middle of the block, and when she had reached about the center of the street she was struck in the shoulders and knocked down by the right mudguard of the motor truck and severely injured. The motor truck was proceeding in an easterly direction at the time. Just before Mrs. Fox stepped from the curb to cross the street a horse and wagon going west, very close to the curb, passed her. There was no other vehicle in the street at that time than the motor truck. The testimony tended to establish that the truck when first seen was being driven at the rate of 20 miles an hour, and that it ran for 12 or 15 feet after it struck Mrs. Fox, and that the driver of the truck, prior to the impact, had one hand on the steering wheel and with the other was arranging some bags behind him so that his face was only partially turned in the direction he was going, and that the motor car was zigzagging: along the street, barely avoiding a collision with the horse and wagon, and that it continued its erratic course until Mrs. Fox was hit.

At the close of the plaintiff's case the appellant moved for a nonsuit, which motion was denied, to which denial an exception was duly taken. At the close of the entire case the appellant moved for a direction of a verdict upon the same ground upon which the motion for a nonsuit was based, which motion was likewise denied and an exception was taken. The propriety of the judge's rulings is before us on an appeal from the judgment.

"A motion for a nonsuit admits the truth of the plaintiff's evidence, and of every inference of fact that can be legitimately drawn therefrom, but denies its sufficiency in law." Weston Co. v. Benecke, 82 N. J. Law, 445, 82 Atl. 878. And the same rule by parity of reasoning, is applicable as to a motion to direct a verdict for the defendant, based upon the insufficiency of the evidence to establish a legal cause of action. Both motions were based upon the ground that the testimony clearly established that Mrs. Fox was guilty of negligence which proximately contributed to her injury. It is obvious that the alleged negligence of Mrs. Fox must be deduced from facts and circumstances in evidence, and this is usually sufficient to make it a jury question.

Unless it is established by the evidence beyond fair debate that the plaintiff was negligent and that the negligence directly contributed to the injury complained of, the motion to nonsuit or direct a verdict will be denied. Mahnken v. Freeholders of Monmouth, 62 N. J. Law, 404, 41 Atl. 921; Bauer v. North Jersey St. Ry. Co., 74 N. J. Law, 624, 65 Atl. 1037; Napurana v. Young, 74 N. J. Law, 627, 65 Atl. 1052; Turner v. Hall, 74 N. J. Law, 214, 64 Atl. 1060.

The rule is well stated in 1 Thompson on Neg. § 1322. The learned author says: "Cases of collision on highways almost invariably involve questions of concurrent negligence on the part of both the actors. As the circumstances attending such injuries are within the range of everyday observation and experience, the question of contributory negligence in these cases is in a peculiar sense a question for a jury, though, of course, within the limits of the principle that there must be evidence reasonably tending to that conclusion, and subject also to the rule that, in cases where the evidence tends only to that conclusion, the judge can decide...