Joy v. Flax

• Citation: 127 A. 596
• Parties: JOY v. FLAX.
• Decision Date: 06 February 1925
• Court: New Jersey Supreme Court

127 A. 596

JOY

v. FLAX.

Supreme Court of New Jersey.

Feb. 6, 1925.

(Syllabus by the Court.)

Appeal from Circuit Court, Essex County.

Action by Maurice Joy against Hyman Flax. From judgment for plaintiff, defendant appeals. Reversed, and a venire de novo awarded.

Argued October term, 1924, before GUMMERE, C. J., and PARKER and KATZENBACH, JJ.

Frank G. Turner, of Jersey City, for appellant.

Kessler & Kessler, of Newark, for respondent.

KATZENBACH, J. This is an appeal from a judgment of the Essex county circuit court.

The action was instituted to recover damages for injuries growing out of an automobile accident on Warren street in the city of Harrison. On April 7, 1923, the plaintiff, Maurice Joy, was standing on a street in Harrison when a friend, John Treanor, came along in his automobile and invited him to take a ride. Joy accepted the invitation, and got into the rear seat of the car. Treanor then went to get another friend to join them in the ride. He was proceeding in a westerly direction on Warren street. A truck of Hyman Flax, the defendant, driven by a servant, Brodkin, was traveling eastwardly on the same street. On the southerly side of the street an automobile was ranked. Brodkin in endeavoring to either pass the ranked car, or to turn the car he was driving around in Warren avenue, struck the automobile of Treanor. Joy was thrown out of the Treanor car, fracturing his skull. Impaired sight and hearing resulted. The usuual conflicting testimony as to negligence was presented. The questions involved were submitted to the jury, which returned a verdict for Joy of $3,500. From the judgment entered upon this verdict, the present appeal has been taken.

The first point argued by the appellant is that there was no proof of the negligence of the defendant submitted by the plaintiff. The testimony offered by the plaintiff tended to show that the Treanor car was on the right side of the street, and that the defendant's car, in an attempt to either turn out from behind the rear of the ranked car, or to turn around in the middle of the block, struck the Treanor car. There is evidence that Treanor's car was being operated at the time of the accident at a speed not exceeding six miles an hour. Brodkin testified that his truck was in second speed. There was testimony that when in second speed it could go from 10 to 12 miles an hour. We think the evidence sufficient to submit the question of negligence to the jury.

The second point pressed by the appellant is that Treanor was guilty of contributory negligence. If he was, which we doubt, his negligence could not be imputed to Joy, who was a passenger in the car. We find no evidence of any contributory negligence on the part of Joy.

The third ground of appeal is that there should have been a direction of a verdict for the defendant. The testimony already mentioned presented evidence which warranted, in our opinion, the submission of the case to the jury by the trial judge.

The fourth point argued by the appellant is that the court erroneously charged the jury when it said: "It was the duty of each man to proceed on the right side of the improved portion...