Lipschitz v. N.Y. & N.J. Produce Corp.

• Decision Date: 27 September 1933
• Docket Number: No. 180.,180.
• Citation: 168 A. 390
• Parties: LIPSCHITZ et al. v. NEW YORK & NEW JERSEY PRODUCE CORPORATION et al.
• Court: New Jersey Supreme Court

168 A. 390

LIPSCHITZ et al.

v. NEW YORK & NEW JERSEY PRODUCE CORPORATION et al.

No. 180.

Court of Errors and Appeals of New Jersey.

Sept. 27, 1933.

Appeal from Supreme Court.

Action by David Lipschitz and another against the New York & New Jersey Produce Corporation and another. Judgment for plaintiffs, and defendants appeal.

Affirmed.

McDermott & Finegold, of Freehold (Harold McDermott, of Freehold, of counsel), for appellants.

Herrigel, Lindabury & Herrigel, of Newark (J. S. Lindabury, of Newark, of counsel), for respondent David Lipschitz.

HEHER, Justice.

Defendants appeal from a judgment of the Supreme Court, entered upon the verdict of a jury impaneled at the Monmouth circuit, awarding to respondent David Lipschitz damages for personal injuries suffered by him as a result of a collision between a motortruck owned by the corporate defendant, and operated by its servant and codefendant Smith, and a like vehicle owned and driven by respondent.

Appellants urge that the trial court erred (1) in denying their motion for a nonsuit, and (2) in refusing to direct a verdict in their favor. They noted an exception to the trial judge's refusal to direct a verdict, but not to his denial of the motion to nonsuit. They now argue that the evidence did not establish the negligent operation of their truck, and that, even so, respondent was guilty of contributory negligence.

The collision occurred at or near the intersection of highways known as Player avenue and James street and state highway route No. 25 in the village of Lindeneau, in the county of Middlesex. There is a convergence of Player avenue and James street at, the state highway. The pavement of the latter thoroughfare was constructed of concrete, and had three definitely marked travel lanes, of the total width of 29 feet, with gravel shoulders on either side. There was a sharp conflict in the evidence as to the collision and the attendant circumstances. There was a wide divergence in the narratives of the operators of these vehicles. Moving in opposite directions on the state highway, respondent's truck approached the intersection from the. east, and appellant's from the west. Respondent testified that he planned to turn south into Player avenue; that, as he approached the intersection, he gradually moved his truck from the northerly to the center traffic lane, and that, when the truck was 100 feet from the intersection, it was entirely in the center lane; that it continued on, in that lane, to the intersection; that he turned his truck to the south into Player avenue, when appellants' truck was a distance of 50 to 75 feet west of the intersection, and, before doing so, signalled his purpose by an extension of his hand; and that the collision occurred after he had moved a distance of 12 to 15 feet across the concrete pavement to the south, and after his front wheels had left the pavement. The point of contact was near the right center of his truck. It was a violent collision. The body of respondent's truck was knocked from the chassis, and respondent was thrown to the roadway and severely injured. There was evidence tending to corroborate the testimony of respondent, particularly as to the point of the collision.

Appellants, on the other hand, insisted that the collision occurred after their truck had passed the intersection. Smith testified that, when his truck was 50 feet west of Player avenue, he observed respondent's truck, in the center lane, a distance of 100 to 125 feet, east of the intersection; that his truck crossed the intersection, in the southerly traffic lane, and that, when it had reached a point 18 feet beyond, responden...