Glicken v. Bergman, 121.

• Decision Date: 02 October 1936
• Docket Number: No. 121.,121.
• Citation: 187 A. 535
• Parties: GLICKEN v. BERGMAN.
• Court: New Jersey Supreme Court

187 A. 535

GLICKEN

v. BERGMAN.

No. 121.

Court of Errors and Appeals of New Jersey.

Oct. 2, 1936.

Appeal from Circuit Court, Essex County.

Action by Jack Glicken against Louis I. Bergman. From a judgment in favor of the defendant entered upon a directed verdict, the plaintiff appeals.

Affirmed.

Silber & Silber, of Newark, for appellant.

Chester W. Rothfuss, of Newark, for respondent.

RAFFERTY, Judge.

This is an appeal from a judgment entered upon a verdict directed in favor of respondent in the Essex county circuit court.

The action is based upon injuries alleged to have been sustained by appellant because of the negligent operation of an automobile owned and operated by respondent while appellant was a passenger therein at the invitation and request of respondent.

At the close of appellant's case respondent offered medical testimony only and rested. Respondent then moved for direction of verdict on the ground that no proof of any negligence had been made by appellant. After argument by counsel, the court granted the motion for direction of verdict. Exception to this action by the trial court being properly taken, the sole ground of appeal assigned is that the trial court erred in directing a verdict in favor of the defendant (respondent) and against the plaintiff (appellant).

Appellant, a midget, professionally employed, and respondent had attended an affair at a club of which respondent was a member. As respondent was leaving the club, after midnight, he invited appellant to go along with him. Appellant agreed and was seated in the back of the automobile when the occurrence, described in. the testimony given below, happened. Appellant was thrown from the rear seat of the automobile against the back of the front seat and sustained certain injuries.

The only testimony offered as to the alleged negligence of respondent was that given by appellant himself, pertinent parts of which are as follows:

"Q. What happened? A. Well, we were driving not very fast but all of a sudden the car went over something. I don't know what happened, and I went flying toward something and you know I got hit, so what happened I don't remember. * * *

"Q. What did he (respondent) tell you happened? A. Well it happened how he went over the bump; after he went over it, why he put the brakes On.

Q. What else? A. And come to a sudden stop. * * *

"Q. What did he (respondent) tell you as to how it happened? A. He came to a sudden stop, put the brakes on after he went over it.

"Q. After he went over what? A. Over that there bump or what—that bum street— he came to a sudden stop, and he took me home."

Appellant urges that, under the maxim of res ipsa loquitur, this testimony established a prima facie case calling upon respondent to go forward with the evidence in explanation or defense of the matter and that a question of fact as to the exercise of reasonable care by respondent, sufficient to be submitted to the consideration of the jury, was raised.

It is the general rule that negligence or want of due care in the defendant will not be presumed, but is a fact which must be shown. The presumption is always against negligence. McCombe v. Public Service Railway Co., 95 N.J.Law, 187, 112 A. 255. And the burden of proving the charge of negligence contained in the complaint is upon plaintiff and must be sustained either by proof of some negligent act, or by a proof of circumstances from which defendant's want of due care is a legitimate inference. It is a substantial right of defendant that plaintiff be required to bear this burden. Bien v. linger, 64 N.J.Law, 596, 46 A. 593.

The rule under which the maxim res ipsa loquitur will be applied in this state is set forth in Smith v. Kirby, 115 N.J.Law, 225, 178 A. 739, 740, as follows: "Where the thing is shown to be under the management of the defendant or his servants, and the accident is such as in the ordinary course of things does not happen if those who have the management use proper care, it affords reasonable evidence, in the absence of explanation by the defendant, that the accident arose from want of care."

The doctrine of res ipsa loquitur has been discussed by this court in numerous cases and has been applied in varying circumstances. The unexplained presence upon the public highway of a "runaway motortruck" moving along the highway to the far side thereof, mounting the curb, and causing damage, was deemed to raise a prima facie presumption of negligence on the part of the owner. Sheridan v. Arrow Sanitary Laundry Co., 105 N.J.Law, 608, 146 A. 191. Where an automobile traveling along the highway at 25 to 30 miles per hour left the highway and struck a tree on the side of the road, it was held that this prima facie resulted from...