Klein v. Shryer
| Decision Date | 19 May 1930 |
| Docket Number | No. 57.,57. |
| Parties | KLEIN v. SHRYER et al. |
| Court | New Jersey Supreme Court |
Syllabus by the Court.
A reason assigned for a new trial that the verdict is contrary to the weight of evidence, which reason was argued, considered, and decided on the return of the rule, is necessarily embraced within exceptions to the refusal to nonsuit and to direct a verdict on the ground that there was no evidence of defendant's negligence and that contributory negligence of the plaintiff conclusively appeared, which were reserved in the rule, and therefore such exceptions cannot be considered on appeal.
Syllabus by the Court.
A ground of appeal, merely alleging general error in the trial and the judgment, is futile.
Syllabus by the Court.
A ground of appeal not argued will not be considered.
Syllabus by the Court.
A ground of appeal challenging the propriety of a portion of the charge to the jury must reproduce the language objected to, or it will not be considered.
Syllabus by the Court.
In a suit for damages for negligence due to running a motor vehicle over the body of the plaintiff, if no specific physical or other injury be shown by the evidence, the plaintiff is still entitled to a verdict for nominal damages.
Appeal from Supreme Court.
Action by Fannie Klein against Adolph Shryer, impleaded with another. Judgment for plaintiff, and defendant named appeals.
Affirmed.
Frank G. Turner, of Newark, for appellant.
Feder & Rinzler, of Passaic, for respondent.
The plaintiff, while crossing on foot a public road from its west to its east side, was struck by a motorcar coming from the north and driven by the defendant Bloom, and according to the testimony in her behalf, and as the jury were entitled to find, was thrown by the collision into the path of a car driven by the defendant appellant Shryer, which latter car by his negligence, as claimed, was driven over her prostrate body, breaking both legs. Plaintiff instituted a suit charging Bloom and Shryer as joint tort-feasors, but at the trial amendments were ordered to be made without objection, the effect of which was to charge Bloom with his alleged negligence in one suit, and Shryer with his alleged negligence in another; and the trial proceeded as on a consolidation of the two suits for that purpose. There was a verdict and judgment against Bloom, which he has paid and satis-fled. There was a verdict for $3,500 damages against Shryer, who obtained a rule to show cause reserving all exceptions, and assigning seven reasons, among which are: (3) That the verdict was against the weight of evidence; (4) that there was no evidence to support a finding of negligence as against Shryer; (5) that there was no evidence from which the jury could find what, if any, injuries had been sustained by the plaintiff because of the alleged negligence of Shryer.
The Supreme Court seems to have considered all the seven reasons, and discharged the rule. 145 A. 924, 7 N. J. Misc. R. 415. We mention these details for the reason that out of the nine grounds of appeal, No. 2 is that the court refused to nonsuit because no prima facie case had been made, and Nos. 3, 4, and 5 are that the court refused to direct a verdict for defendant (a) because no negligence had been shown, (b) because of contributory negligence, and (c) because there was no proof of any injury caused by Shryer's automobile; and for the further reason that the rule is well settled that a reason assigned for a new trial that the verdict is contrary to the weight of evidence, which reason was argued, considered, and decided on the return of the rule, is necessarily embraced within exceptions to the refusal to nonsuit and to direct a verdict on the ground that there was no evidence of defendant's negligence and that contributory negligence of the plaintiff conclusively appeared, which were reserved in the rule, and therefore such exceptions cannot be considered on appeal. Boniewsky v. Polish Home, 103 N. J. Law, 323, 136 A. 741; Catterall v. Otis Elevator Co., 103 N. J. Law, 381, 135 A. 865; Noonan v. Great A. & P. Tea Co., 104 N. J. Law, 136, 139, 139 A. 9, 56 A. L. R. 590; Cleaves v. Yeskel, 104 N. J. Law, 497, 141 A. 814; Overend v. Kiernan (N. J. Err. & App.) 143 A. 357. These grounds are therefore futile.
The remaining grounds are Nos. 1, 6, 7, 8, and 9. No. 8 merely charges general...
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