Layden v. Goodyear Tire & Rubber Co., Inc., 39.

Citation129 N.J.L. 54,28 A.2d 96
Decision Date18 September 1942
Docket NumberNo. 39.,39.
PartiesLAYDEN v. GOODYEAR TIRE & RUBBER CO., Inc.
CourtUnited States State Supreme Court (New Jersey)
28 A.2d 96
129 N.J.L. 54

LAYDEN
v.
GOODYEAR TIRE & RUBBER CO., Inc.

No. 39.

Court of Errors and Appeals of New Jersey.

Sept. 18, 1942.


28 A.2d 97
Syllabus by the Court.

1. The evidence in this cause held to justify the submission to the jury of the questions of invitation by the defendant, a consequent duty of reasonable care, and breach of that duty.

2. The question whether plaintiff in attempting to rescue his young child in a situation of apparent danger of death or injury was guilty of contributory negligence, held also properly submitted to the jury.

Appeal from Supreme Court.

Action by Thomas Layden against the Goodyear Tire & Rubber Company, Incorporated, for personal injuries. From a judgment for plaintiff, defendant appeals.

Affirmed.

George L. Burton, of South River, for appellant.

John C. Stockel, of Perth Amboy, for respondent.

PARKER, Justice.

This is an accident case, the circumstances of which are unusual, as will appear presently. The plaintiff was very severely injured, and the verdict in his favor was a large one. The case was carefully tried, and there are only three grounds of appeal, namely, refusal to nonsuit on the plaintiff's opening: refusal to nonsuit when the plaintiff rested: and refusal to direct a verdict for defendant at the conclusion of the evidence.

The rule is of course thoroughly settled that the refusal of nonsuit for failure of proof is not error leading to a reversal if such proofs were afterwards supplied by either party in the progress of the trial. Some of the decisions on this point are Perth Amboy Manufacturing Co. v. Condit, 21 N.J.L. 659, 662: Delaware, etc., R. Co. v. Dailey, 37 N.J.L. 526; May v. North Hudson County Railway Co., 49 N.J.L. 445, 9 A. 688; West Jersey, etc., R. Co. v. Welsh, 62 N.J.L. 655, 657, 42 A. 736, 72 Am.St.Rep. 659; Esler v. Camden, etc., R. Co., 71 N.J.L. 180, 58 A. 113; Bostwick v. Willett, 72 N.J.L. 21, 60 A. 398; Carey v. Hamburg-American Packet Co., 72 N.J.L. 56, 60 A. 179; Schnackenberg & Co. v. Delaware, L. & W. R. Co., 86 N.J.L. 517, 93 A. 701. The questions for decision therefore are, first, whether on the whole case there was evidence justifying a jury concluding that the plaintiff's injury was due to negligence of the defendant; and secondly, whether as a court question plaintiff was shown to have been guilty of contributory negligence. The first question is two-fold: was there a duty owing to plaintiff by defendant and if so, was there a breach of that duty?

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