Kerner v. Zerr
| Decision Date | 31 January 1927 |
| Docket Number | No. 90.,90. |
| Citation | 135 A. 866 |
| Parties | KERNER v. ZERR. |
| Court | New Jersey Supreme Court |
(Syllabus by the Court.)
Appeal from Supreme Court.
Action by Frederick Kerner against Ernest Zerr. From a judgment of nonsuit, plaintiff appeals. Reversed, with direction to issue a venire de novo.
Palmer & Cooper, of Newark, for appellant.
John W. McGeehan, Jr., of Newark, for respondent.
This was an action for personal injuries, the plaintiffs claim being that he was knocked down and injured by the careless operation of an automobile driven or being backed by the defendant. At the close of the plaintiff's case a nonsuit was directed. This was error.
The plaintiff's case, taken in its most favorable aspect for him, was that he had ridden with the defendant in the batter's car to the place of a florist on Bernard avenue in Irvington for the purpose of purchasing flowers. When they reached the florist's place of business, they turned into a lane, or driveway, which ran from Bernard avenue into the greenhouse yard. When they had finished their business with the florist, and came back to the car, it was found necessary to back the car out of the land, or driveway, onto Bernard avenue; there not being room to turn it around. The plaintiff was asked by the defendant to guide him as he was backing the car out onto the public road. In pursuance of this request, the plaintiff walked down the driveway toward Bernard avenue, intending to signal the defendant when it would be safe to back the car out of the driveway onto Bernard avenue. About the time he reached the avenue, and before giving any signal to the defendant to come on with his car, the defendant ran him down by backing onto the plaintiff, causing the injuries. The direction of a nonsuit was based upon the theory that there was no evidence to show negligence on the part of the defendant, and that the contributory negligence of the plaintiff was demonstrated by his own testimony. Both of these conclusions were erroneous. If it be true that the plaintiff was walking down the driveway for the purpose of signaling the defendant, when he reached the avenue, that it would be safe to move the car onto the avenue, it was at least a question for the jury to say whether the plaintiff was not justified in presuming that the defendant would not move his car until he got the signal. It was also for the jury to say, if it believed the story of the plaintiff as to the arrangement with relation to signaling, whether it was not negligent on the part of the defendant to back his car on the plaintiff before receiving a signal from the latter, and without warning the latter of the approach of the vehicle. The ...
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...Fagan v. Central R. R., 94 N. J. Law, 454, 111 A. 32; Alvino v. Public Service Rwy. Co., 97 N. J. Law, 526, 117 A. 709; Kerner v. Zerr, 103 N. J. Law, 424, 135 A. 866. Finding no error in the matters before us, the judgment under review is affirmed, with For affirmance: The CHANCELLOR, the ......
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...the trial court erred in granting the motion for nonsuit. Reliance is placed upon the doctrine as enunciated in the case of Kerner v. Zerr, 103 N.J.L. 424, 135 A. 866, to the effect that: "A motion for a nonsuit admits the truth of the plaintiff's evidence, and of every inference of fact th......
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Alpert v. Feldstein, A--419
...might be reasonably and legitimately inferred it was for the jury to determine whether it ought to be inferred. Kerner v. Zerr, 103 N.J.L. 424, 135 A. 866 (E. & A.1927). These rules are applicable in our present day practice on a motion to dismiss at the close of the plaintiff's case. Piroz......