Lozio v. Perrone, 10.

• Decision Date: 24 October 1933
• Docket Number: No. 10.,10.
• Parties: LOZIO v. PERRONE.
• Court: New Jersey Supreme Court

168 A. 764

LOZIO

v. PERRONE.

No. 10.

Supreme Court of New Jersey.

Oct. 24, 1933.

Syllabus by the Court.

1. In passing upon motions to nonsuit and to direct a verdict upon the ground that there was no evidence of defendant's negligence, the court is not concerned with the credibility of the witnesses nor with the weight of the evidence, but must take as true all evidence which supports the plaintiff's view and must give him the benefit of all legitimate inferences which may be drawn therefrom in his favor; and where the evidence is such that reasonable minds may reasonably differ as to the fair conclusion to be drawn therefrom as to whether or not the defendant exercised reasonable care, a jury question is presented, and such motions must be denied.

2. It is the duty of an operator of an automobile before backing it upon a city street to use reasonable care to first see that such movement can be made in safety; and where the evidence tends to show that the defendant backed his taxicab against and injured the plaintiff who was sweeping the street for the city, and without first looking to see if the way was clear and without giving any warning whatsoever of such intended movement, the question of the negligence of the defendant was for the jury and not for the court.

3. While a person employed by a city as a street sweeper is bound to exercise care for his safety such as an ordinarily prudent person would exercise in such circumstances, yet he has the right to assume that persons operating vehicles in the street will do so with a reasonable degree of care for his safety while busily engaged in sweeping the street, and he is not required to use the same degree of care as must be exercised by an ordinary pedestrian crossing the street.

Appeal from Court of Common Pleas, Essex County.

Action by Angelo Lozio, also known as Angelo Sozio, against John Perrone. Judgment for plaintiff, and defendant appeals.

Affirmed.

Argued May term, 1933, before BROGAN, C. J., and TRENCHARD and HEHER, JJ.

Samuel H. Nelson, of Newark, for appellant.

Nicholas La Vecchia, of Newark, for respondent.

TRENCHARD, Justice.

This is the appeal of the defendant below from a judgment entered upon the verdict of the jury in favor of the plaintiff, who sued to recover for physical Injury received when he was hit by a taxicab owned and operated by the defendant and while the plaintiff was employed in sweeping a street of the city of Newark.

The defendant first says that the trial judge erred in refusing to nonsuit the plaintiff and in refusing to direct a verdict for the defendant.

These two motions may be considered together, as they are substantially to the same effect, namely, that there was no evidence of negligence upon the part of the defendant.

We think both motions were properly denied.

Of course, in passing upon motions to nonsuit and to direct a verdict upon the ground that there was no evidence of defendant's negligence, the court is not concerned with the credibility of the witnesses nor with the weight of the evidence, but must take as true all evidence which supports the plaintiff's view and must give him the benefit of all legitimate inferences which may be drawn therefrom in his favor; and where the evidence is such that reasonable minds may differ as to the fair conclusion to be drawn therefrom as to whether or not the defendant exercised reasonable care, a jury question is presented and such motions must be denied. Andre v. Mertens, 88 N. J. Law, 626, 96 A. 893; Cady v. Trenton & Mercer, etc., Corp., 104 N. J. Law, 572, 141 A. 806.

Here, regard being had to such rules, the question of defendant...