Kennell v. Gershonovitz

• Decision Date: 09 June 1913
• Citation: 87 A. 130,84 N.J.L. 577
• Parties: KENNELL v. GERSHONOVITZ et al.
• Court: New Jersey Supreme Court

87 A. 130

84 N.J.L. 577

KENNELL

v. GERSHONOVITZ et al.

Supreme Court of New Jersey.

June 9, 1913.

(Syllabus by the Court.)

Appeal from District Court, Hudson County.

Action by Josephine Kennell against Isaac Gershonovitz and another, etc. From judgment for plaintiff, defendants appeal. Affirmed.

Argued February term, 1913, before TRENCHARD, PARKER, and VOORHEES, JJ.

Gross & Gross, of Jersey City, for appellants.

J. Emil Walscheld, of Town of Union, for appellee.

VOORHEES, J. The judgment brought under appeal in this case was rendered by the judge of the district court, acting without a jury. The accident arose out of a collision between a street car of the public service railway, in which the plaintiff was riding, and a wagon claimed to have been operated by the servant of the defendant; plaintiff's car running in a northerly direction and the wagon running in a southerly direction and on the other track were about to pass each other. A car going in an opposite direction came up behind the wagon and signaled it to get off the track. The wagon turned out and something projecting struck the glass of the plaintiff's car, which inflicted the injury upon the plaintiff, as is alleged. The defendant, replying, states that the rear wheels of the wagon, having caught in the track, skidded. The court gave judgment in favor of the plaintiff for $300. The points raised by the plaintiff are set forth in the brief.

The first point attacks the state of demand for failure to allege the facts constituting the negligence intended to be proved. A general allegation of negligent driving which is set forth in the state of demand is sufficient. The law does not require strict formality in pleadings in the district court. If the state of demand is such as to show thereafter what was tried in the action, it is well founded against the allegation of uncertainty. O'Donnell v. Weiler, 72 N. J. Law, 142, 59 Atl. 1055; De Jianne v. Citizens' Protective Ass'n, 79 N. J. Law, 107, 74 Atl. 443. The state of demand in the present case sufficiently sets out the claim against the defendant, and from it it will sufficiently appear what the suit decided.

A second ground of appeal is that there should have been a nonsuit because the plaintiff had failed to answer certain of the interrogatories propounded by the defendant. These were submitted under the district court act (C. S. 1910, p. 1972, § 64b; P. L. 1910, p. 491). This section does not contemplate a nonsuit. The power of the judge is to stay or dismiss the proceeding in order to compel an answer, but as well the court might attach for contempt.

It is thirdly objected that the driver of the wagon was not the servant or representing the defendant, but an independent contractor. There was a conflict of testimony as to the driver's status raising a question of fact as to which no appeal is given by the statute, although perhaps the burden of proof was on the defendant. Redstrake v. Swayze, 52 N. J. Law, 129, 18 Atl. 697. We find no error in this.

Fourth. The court found from the testimony in the case, which seems to be ample to support it, that...