Gibbs v. Barton

• Decision Date: 07 October 1925
• Docket Number: Nos. 29-32.,s. 29-32.
• Citation: 130 A. 439
• Parties: GIBBS et ux. v. BARTON. McDAVITT et ux. v. SAME.
• Court: New Jersey Supreme Court

130 A. 439

GIBBS et ux.

v. BARTON.

McDAVITT et ux. v. SAME.

Nos. 29-32.

Supreme Court of New Jersey.

Oct. 7, 1925.

Separate suits by Frank Glbbs and wife and J. Frank McDavitt and wife against Elwood Barton. Verdicts for the plaintiffs. On defendant's rule to show cause. Rule discharged.

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

Kalisch & Kalisch, of Newark, for the rule.

William A. Dolan, of Newton, and Frederic B. Scott and John E. Morrissey, both of New York City, opposed.

PER CURIAM. These suits were instituted by the respective plaintiffs to recover compensation for injuries severally received by them in an automobile collision between a car of the defendant and a car of the plaintiff McDavitt, in which he and his wife and Gibbs and his wife were riding. The jury found that the responsibility for the accident was due solely to the negligence of the defendant, and awarded the plaintiff Frank Gibbs $10,000, his wife $5,000, J. Frank McDavitt $3,000, and his wife $2,000.

The principal ground upon which we are asked to set aside these verdicts is that they are each of them excessive. If the injuries of the respective plaintiffs were as severe as the proofs offered by them showed, the verdicts cannot properly be condemned excessive. The jury evidently believed the testimony ottered by the plaintiffs as to the character and seriousness of the injuries received by each of them, and we cannot say they were not justified in so doing. We conclude therefore that the several verdicts ought not to be set aside upon this ground.

The next contention is that the trial court erred in refusing to direct the withdrawal of a juror and declaring a mistrial upon the request of the defendant's counsel, after it had been brought out in the testimony, over the objection of defendant's counsel, that the latter carried insurance. We think this refusal on the part of the trial court does not justify an award of a new trial. The withdrawal of a juror and the declaring of a mistrial are not rights existing in the party who claims to have been injured by the admission of incompetent testimony, but are matters resting in the discretion of the trial court. And the action of that court ought not to be interfered with by us unless it is apparent that such discretion was abused. That, we think, cannot be said in the present case.

The only other ground urged for setting aside these verdicts is that the trial court improperly admitted...