Kathmeyer v. Mehl

• Decision Date: 27 February 1905
• Citation: 60 A. 40
• Parties: KATHMEYER v. MEHL.
• Court: New Jersey Supreme Court

60 A. 40

KATHMEYER

v. MEHL.

Supreme Court of New Jersey.

Feb. 27, 1905.

Action by Frederick Kathmeyer against Henry Mehl. Verdict for plaintiff. Heard on rule to show cause. Discharged on condition of remittitur.

Argued November term, 1904, before GUMMERE, C. J., and GARRISON, GARRETSON, and REED, JJ.

William H. Corbin, for the rule. John I. Weller, opposed.

PER CURIAM. The plaintiff sued for damages for injuries resulting from his being run down by the defendant's automobile. The jury gave a verdict for $8,150. The first ground upon which we are asked to set this verdict aside is that the testimony makes it clear that the injury to the plaintiff was caused by an accident, and not by the negligence of the defendant. We do not think such a conclusion is justified by the testimony. On the contrary, a reading of it leads us to the same conclusion as that reached by the jury, namely, that the injury was the result of the careless driving of the automobile by the defendant's chauffeur.

The next ground upon which the verdict is attacked is that the plaintiff himself was negligent. The evidence showed that he was standing in the roadway conversing with a friend, who had stopped his wagon at the point where the accident happened, for the purpose of engaging in conversation with the plaintiff. We see nothing negligent in the plaintiff's action. Certainly he had no reason to suppose that, merely because he was standing in the roadway, he would be run down by the recklessness of the driver of an automobile. He was lawfully there, and any person using the highway was bound to take notice of him, and to use care not to injure him, and the plaintiff had a right to assume that this would be done.

One other ground is advanced as a reason for our interfering with this verdict, and that is that the damages assessed are excessive. We think this contention is well founded. The plaintiff was quite severely bruised, one of his shoulders was dislocated, and two of his ribs were fractured. The preponderance of the evidence, however, is clearly in favor of the conclusion that his injuries were not permanent, and, this being so, a much less sum than that awarded by the jury would amply compensate him therefor.

If the plaintiff will consent to reduce the amount of his verdict to $2,500, he may enter judgment for that amount; otherwise the rule to show cause will be made absolute.