Lyon v. Fabricant

• Decision Date: 19 December 1933
• Docket Number: No. 12.,12.
• Citation: 169 A. 548
• Parties: LYON et al. v. FABRICANT et al.
• Court: New Jersey Supreme Court

169 A. 548

LYON et al.

v. FABRICANT et al.

No. 12.

Supreme Court of New Jersey.

Dec. 19, 1933.

Appeal from Court of Common Pleas, Essex County.

Action by Raymond I. Lyon, Jr., and others against Max Fabricant and another. Judgment for plaintiffs, and defendants appeal.

Affirmed.

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

Pomerehne, Laible & Kautz, of Newark (Henry Pomerehne, of Newark, of counsel), for appellants.

Walter A. Beers, of Newark, for appellees.

PER CURIAM.

This is an appeal from a judgment recovered by the several plaintiffs against the defendants in an action tried at the Essex county court of common pleas.

The plaintiffs were all passengers in an automobile proceeding easterly along the Lincoln Highway at Fallsington, Pa. The defendant Max Fabricant was driving an automobile belonging to the defendant Joseph Prupis, with Isidore Penn as a passenger. From the testimony, it appears that the state highway, in this vicinity, is a concrete road with two lanes for driving, one easterly, the other westerly, each about ten feet in width. There was a collision, the incident occurring between midnight and 1 o'clock in the morning on April 18, 1932.

From the testimony offered on behalf of the plaintiffs, the jury might legitimately have concluded that the car in which the plaintiffs were riding was proceeding easterly at a moderate speed, and that close behind it was another automobile driven by O'Meara, who appeared as a witness in the case in behalf of the plaintiffs, and that the defendant's car, driven by Fabricant, going in the same direction, pulled out from behind these two cars and passed the O'Meara car, and the plaintiffs' car as well, at a speed of fifty-five miles an hour; that this defendant's car, after having passed these two automobiles at a high rate of speed, continued on the left side of the road for some distance when it collided with a car driven in the opposite, or westerly, direction, so that the left front wheel of the defendant's car and the left front wheel of the on-coming car, owned by one Powell, were demolished, the Powell car crashing into the automobile in which the plaintiffs were riding, overturning it, and causing injury to these plaintiffs. This was the picture disclosed by the testimony of the witnesses, and which the jury might take as the facts.

Prom the judgments entered on the verdicts found by the jury, the defendants below appeal, setting up three main points.

The first ground of appeal, namely, that the trial court erred in rejecting defendants' motion for nonsuit, is predicated on the proposition, first, that there was no evidence that the defendants were guilty of negligence, and, second, that the evidence did not show that the negligence was the proximate cause of the injury.

It will serve no useful purpose to set forth the evidence in the case, pointing out with particularity incidents that spell negligence on the part of the defendants below, except to say that the testimony is replete with recitals that make manifest...