Kaufman v. Bush

• Decision Date: 16 November 1903
• Citation: 56 A. 291,69 N.J.L. 645
• Parties: KAUFMAN v. BUSH.
• Court: New Jersey Supreme Court

56 A. 291

69 N.J.L. 645

KAUFMAN

v. BUSH.

Court of Errors and Appeals of New Jersey.

Nov. 16, 1903.

(Syllabus by the Court.)

Error to Circuit Court.

Action by Ellen Kaufman, by Bridget Kaufman, her next friend, against Samuel Bush. Judgment for plaintiff, and defendant brings error. Affirmed.

Edward A. and William T. Day, for plaintiff in error.

Alexander Simpson, for defendant in error.

GARRISON, J. This is an action brought by an infant aged five years to recover damages for being run down by defendant's vehicle upon a public highway. The gravamen is the careless management of defendant's horse, driven by his servant. The case went to the jury and Judgment went against the defendant, who has brought this writ of error, contending that the plaintiff should have been nonsuited, or that a verdict for the defendant should have been directed; each of which motions was made and denied.

The plaintiff called but a single witness to testify as to the occurrence—Annie Quinn, a child of 13, who was in charge of the plaintiff. The driver of the team, who was called by the plaintiff to prove the defendant's ownership, was permitted to be cross-examined as to the manner in which the collision occurred, and thereupon gave a version of it that flatly contradicted the testimony of Annie Quinn in that respect. This discrepancy, however, could avail the defendant nothing upon his motion to nonsuit. The trial judge could not ignore the testimony of one of the plaintiff's witnesses in favor of that given by another, or pass upon their conflicting claims to credibility. The motion has the effect of a demurrer to so much of the testimony as is favorable to the plaintiff, admitting its verity in point of fact for the purpose of denying its sufficiency in point of law. The motion to direct a verdict in the present instance presented the plaintiff's case in precisely the same aspect. For the purpose of each of these motions the facts to be dealt with were that the plaintiff, in full daylight, started to cross a public highway upon which the defendant's team was being driven. The point was a public crossing at the junction of two streets, and when the plaintiff was about leaving the sidewalk the defendant's team, which was approaching the crossing at a high rate of speed, seemed to the witness Quinn to be half a block away, although, in view of her other testimony, this was an exaggerated estimate, so far as the exact distance was concerned. When the plaintiff had got...