Kelliher v. Grier

• Decision Date: 04 February 1941
• Docket Number: No. 38.,38.
• Citation: 126 N.J.L. 162,18 A.2d 282
• Parties: KELLIHER et al. v. GRIER.
• Court: New Jersey Supreme Court

18 A.2d 282

126 N.J.L. 162

KELLIHER et al.

v. GRIER.

No. 38.

Court of Errors and Appeals of New Jersey.

Feb. 4, 1941.

Appeal from Supreme Court.

Action by John Kelliher, Jr., by his next friend, John Kelliher, Sr., and another against Solveig Berg Grier to recover for injuries sustained in an automobile accident.

Judgment for plaintiffs and the defendant appeals.

Judgment reversed.

William W. Evans, of Paterson for appellant.

Hugh C. Spernow, of Paterson (Hunziker & Hunziker, of Paterson, of counsel), for respondents.

HAGUE, Judge.

This is defendant's appeal from a judgment recovered by the plaintiff, an infant, for personal injuries, and by his father as next friend for his expenses arising therefrom. The case was tried before. There were then additional defendants. A jury verdict for the plaintiffs against this defendant was set aside on rule to show cause. The details of that trial and the subsequent happenings are not important here. Since the last trial the defendant, Solveig Berg, has been married and now appears under her marriage name.

The appellant, a school pupil of seventeen years of age, at the time in question, drove her automobile several blocks from the school, during the noon recess, into the City of Paterson for the purpose of getting her lunch at a local drugstore. While returning from lunch she stopped and took into her car a group of girl pupils who were walking back to shool. Several boys, including the infant plaintiff, upon witnessing this occurrence, decided to join the girls and ran out to the car and assumed various positions on the running-boards. The evidence shows that the plaintiff, John Kelliher, Jr., was told to get off the running-board, which he did, but later seated himself on the front bumper of the car. The car had only traveled a few yards when it ran into or was "side-swiped" by another car and the boy's leg was broken.

The grounds of appeal are two in number, (1) refusal to nonsuit; (2) refusal to direct a verdict.

That the plaintiff, John Kelliher, Jr., occupied no relationship to the defendant other than that of trespasser, or at best a licensee, is clear. There was no evidence of this kind of negligence in the case. He had not been invited to get on the car by the defendant nor by anyone who was defendant's agent for that purpose. Some of the school girls already in the car called out to the boy, "Hop on." That was the extent of the so-called invitation. There was no testimony from which a jury could legitimately...