Francisco v. Coca Cola Bottling Co. of N.Y., Inc.
| Citation | 159 A. 319 |
| Parties | FRANCISCO et al. v. COCA COLA BOTTLING CO. OF NEW YORK, Inc., et al. |
| Decision Date | 11 March 1932 |
| Court | New Jersey Supreme Court |
Action by G. Gordon Francisco and others against the Coca Cola Bottling Company of New York, Incorporated, and George Weiss. Verdict for defendants as to G. Gordon Francisco and against defendants as to A. Vincent Francisco, an infant. On plaintiffs' rules to show cause.
Rule as to G. Gordon Francisco discharged. Rule as to A. Vincent Francisco conditionally discharged.
John C. Grimshaw and Frank G. Turner, both of Newark, for plaintiffs.
Stein, McGlynn & Hannoch (Edward R. McGlynn), all of Newark, for defendants.
Plaintiffs in this case sought to recover compensation from the defendants because of an accident occurring July 5, 1930, about 9:50 a. m., at the intersection of Neptune highway and Asbury avenue in Neptune township.
The questions put to the jury, which were disputed questions of fact, were: (1) Whether or not the defendants were guilty of negligence, and (2) if guilty of negligence, whether the plaintiff G. Gordon Francisco was guilty of contributory negligence.
The plaintiff Rose A. Francisco was awarded $15,000 and of this the plaintiff does not complain. The jury found a verdict of no cause for action as to G. Gordon Francisco and a verdict of $250 for the son, A. Vincent Francisco. Plaintiffs G. Gordon Francisco and A. Vincent Francisco have a rule, and it is contended that new trials should be had because the verdict of no cause for action against G. Gordon Francisco was against the weight of the evidence and because the damages awarded to A. Vincent Francisco, the son, were inadequate.
Taking up, first, the case of G. Gordon Francisco, the jury could believe from the conflicting testimony that G. Gordon Francisco, who was driving the car in question, was going south on Neptune Highway and was about 50 to 80 feet from the traffic light when it was red. As he neared the intersection he changed gears, halted his car, and really came to a stop. The light had then turned green and he changed gears to second, put his hand out, and went ahead. He looked into the glass and saw people in back of him, and before making the left-hand turn into Asbury avenue he made observations and saw a truck 150 to 200 feet away. It was a bright, clear, sunshiny day with a good view and no curves in the road. From the time plaintiff first saw the truck until the accident happened, he traveled anywhere from 50 to 70 feet and said he blew his horn prior to making the turn. It appears that this is a very wide intersection and the left-hand turn, taking a southeasterly course, was made almost directly at the traffic light which is in the center of the highway. Witnesses for plaintiff testified that they heard a crash and saw the truck out near the center of the highway pushing the Francisco car toward the curb. One witness said that the car and truck never moved after they came in contact with each other. There is testimony that the plaintiff's car started from away over on the right side of the road to make the left turn, and there is other testimony that it was nearer the center. None of the witnesses appeared to know the speed of the defendant's truck, except one witness who caught a glimpse of it as he was sitting in his office and he said that he thought it was going about 30 miles an hour. The testimony of the plaintiff as to the speed he was traveling prior to and at the time he was making the turn is 10 to 15 miles an hour. His father-in-law, Mr. O'Brien, said he was turning at a speed of about 18 miles an hour. Mr. O'Brien also stated that he took his eyes off the plaintiff after he had passed the suspension or traffic light and had a view of 150 to 175 feet and saw nothing within 175 feet. If that last statement is true, it is difficult to understand how there could have been an accident.
The defendant's driver said he was traveling north on Neptune Highway in a three and a half to four ton Coca Cola truck, and that for a distance of one to two blocks from Asbury avenue the road is straight; that he was driving about 15 to 18 miles an hour near the right-hand curb; that the traffic light at Neptune Highway and Asbury avenue was green as he was approaching, and when he got under the traffic light the plaintiffs car made a sudden left turn; that no horn was blown and no hand was out; that the truck was then about 15 feet away from the plaintiff's car; and that he (truck driver) applied his brakes and swung the truck to the right and the accident happened. The helper on the truck testified that the truck went under the light or near the light, and about 15 feet away when the plaintiff's car made a sudden left turn into the path of defendant's truck; that the truck made a full right swing to avoid the accident; and that both cars stopped almost immediately.
From this conflicting testimony I am inclined to believe that it was peculiarly a question of fact for the jury. I am not relying on the testimony of defendant's driver alone, but if the testimony of Mr. O'Brien, a relative who was interested in the case, is true or partly true, the plaintiff was making the turn at a speed of 18 miles an hour, which is a fast rate of speed in which to make a left-hand turn and would be a violation of the Traffic Act, which, while not standing alone as evidence of negligence, nevertheless can be considered by the jury in determining whether or not there was negligence under all of the circumstances of the case.
Then, too, if what the real estate agent said relative to the place where the accident happened is true, it could very well be, and the jury would have a perfect right to believe, that the accident happened out near the center of the highway at the time plaintiff made a sudden left-hand turn, and the truck, by swinging right and coming in contact with plaintiff's car, could do nothing but push it some distance.
I might say that I have gone over the testimony carefully on two different occasions, and it seems to me the testimony is in conflict to such an extent that it was for the jury to say whether or not the plaintiff was guilty of contributory negligence.
In the case of Stefanacci et al. v. Borden's Farm Products Co., 100 N. J. Law, 160, 125 A. 129, it appears that the plaintiffs were driving north on the easterly side of River drive, and the defendant's team was being driven by its employee in a southerly direction on the westerly side of the same street. On the west side of River drive are located the rails of an electric railway, and when the railway track reaches Gregory avenue it turns eastward across River drive and into that avenue. The defendant's truck was proceeding in the rails, and reaching Gregory avenue, turned rapidly and without warning to the east. When it reached the easterly side of River drive, it collided with the plaintiffs' automobile, striking it on the left side and injuring its occupants. It was held: "Evidence that defendant's truck while proceeding on street in an opposite direction from plaintiffs, turned rapidly and without warning, colliding with plaintiffs' automobile, striking it on the left side, and injuring its occupants, held sufficient evidence of negligence to justify denial of nonsuit." Stefanacci et al. v. Borden's Farms Products Co., 100 N. J. Law, 160, 125 A. 129.
"Where the existence of negligence depends upon the conclusion to be reached from a variety of...
To continue reading
Request your trial