Graff v. Louis Stern Sons, Inc.

• Decision Date: 09 December 1926
• Docket Number: No. 42.,42.
• Citation: 135 A. 335
• Parties: GRAFF v. LOUIS STERN SONS, Inc.
• Court: New Jersey Supreme Court

135 A. 335

GRAFF

v. LOUIS STERN SONS, Inc.

No. 42.

Supreme Court of New Jersey.

Dec. 9, 1926.

(Syllabus by the Court.)

Appeal from Court of Common Pleas, Hudson County.

Action by Martha Graff against Louis Stern Sons, Inc. From a judgment for plaintiff, defendant appeals. Affirmed.

Argued May term, 1926, before GUMMERE, C. J., and TRENCHARD and MINTURN, JJ.

Joseph C. Paul and Jacob Schneider, both of Newark, for appellant.

Alex. Simpson, of Jersey City, for respondent.

TRENCHARD, J. At the trial the jury, if they saw fit, could legitimately find, and no doubt did find, from the conflicting evidence, the following matters of fact: The plaintiff, a woman, was riding with friends in an automobile along the Lincoln Highway in Jersey City, on August 9, 1924, at 1:30 p. m. The automobile stopped on her left-hand side of the road. The plaintiff looked back and saw the defendant's automobile truck coming at a moderate speed more than 300 feet away. She then alighted from the car, and again looked back, and again saw the defendant's truck coming, as she thought, at a moderate speed, about 250 or 300 feet away. She proceeded to cross to the right-hand side of the street, and was struck and injured, just as she reached the curb and had one foot on the sidewalk, by the defendant's truck, which had given no signal or warning of its approach.

The defendant's first point, on this its appeal, is that the plaintiff's judgment should be reversed because "the court erred in charging the jury concerning the warning by horn or other signal and device." We think that contention is without merit. The evidence tended to show that, when the plaintiff started across the street, she was in full view of the driver of the defendant's truck, and sufficiently distant for him, by the exercise of reasonable care, to avoid hitting her. Migans v. Jersey City, etc., Ry. Co., 76 N. J. Law, 535, 70 A. 168. It was therefore proper for the trial judge in his charge to call attention to section 7(2) of the Motor Vehicle Act (P. L. 1924, p. 447), which declares that:

"Every motor vehicle must be equipped with a horn or signaling device, and the operator of the same shall give reasonable warning of his approach whenever necessary to insure the safety of other users of the highway * * * or pedestrian using any part of the highway other than the sidewalk," etc.

The fact that the defendant's driver gave no signal or warning or his approach, while not conclusive as to his negligence,...