Mancino v. Urbaniak

• Citation: 200 A. 483,120 N.J.L. 424
• Decision Date: 29 June 1938
• Docket Number: No. 10.,10.
• Parties: MANCINO et al. v. URBANIAK.
• Court: New Jersey Supreme Court

200 A. 483

120 N.J.L. 424

MANCINO et al.

v. URBANIAK.

No. 10.

Supreme Court of New Jersey.

June 29, 1938.

Syllabus by the Court.

1. Where the plaintiffs' evidence tended to show that the defendant was driving his automobile through a "crowded" street in a residential section of a city at a speed of from 35 to 45 miles an hour when he struck the plaintiff, an infant seven years and three months old, it was not error to refuse to non-suit upon the allegation that there was no evidence of negligence upon the part of the defendant.

2. In order to determine whether a child old enough to be capable of negligence has been guilty of contributory negligence, it is necessary to take into consideration the age of the child, and its experience and ca pacity to understand and avoid danger to which it is exposed in the actual circum stances and situation under investigation, and it is usually a question for the jury to determine whether or not a child seven years and three months old has been guilty of contributory negligence, and especially so where the evidence tends to show that the child, who was injured in crossing a street by a fast-running automobile, before cross ing made some observations and saw no car approaching.

3. The question of the credibility of wit nesses is for the jury.

4. Discrepancies between the testimony of witnesses called by the plaintiff cannot avail the defendant upon a motion to non suit or to direct a verdict.

5. In the trial of the case of a child more than two years after the accident, it was not reversible error to exclude the ques tion put to the infant on cross-examination "You know that it was wrong to hang on wagons?" where the child was injured by defendant's automobile while crossing a street on foot on his way home, and where hanging on wagons had no bearing on the question of the child's alleged contributory negligence which was stated as the sole reason for the question.

Appeal from Court of Common Pleas, Mercer County.

Suit by Frank Mancino, by his next friend, Antonio Mancino, and by Antonio Mancino, against S. Frank Urbaniak to recover for injuries sustained by Frank Mancino when struck by an automobile driven by the defendant. From a judgment in favor of the plaintiffs, the defendant appeals.

Judgment affirmed.

Argued January term, 1938, before BROGAN, C. J., and TRENCHARD and PARKER, JJ.

Andrew M. Cella, of Trenton, for defendant-appellant. George H. Bohlinger, Jr., of Trenton (Walter D. Cougle, of Trenton, of counsel), for plaintiffs-respondents.

TRENCHARD, Justice.

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This suit was instituted for the recovery of damages for injuries to Frank Mancino, an infant, caused by his being struck by the automobile driven by the defendant, and by the infant's father for his consequential damages; and the trial resulted in a verdict and judgment for the plaintiffs, from which the defendant appeals.

The evidence at the trial, though somewhat in dispute, tended to show, and the jury was justified in finding, among other things, the following matters of fact:

The infant plaintiff at the time of the accident was seven years and three months old. He, with some other children, had been riding on the rear of a milk wagon on a city street in Trenton, and the driver ordered the children from the wagon. The infant plaintiff ran toward the west curb of the street, and at or near the curb he stopped to go to his home which was on the other side of the street. When he started for his home the milk wagon was one block away. The street which he had to cross to get to his home was in a "crowded" residential section of the city. He looked to his left (the direction from which defendant's automobile approached) before he started to cross, but did not see any automobile. After he had passed completely in front of defendant's automobile, he was struck by the mudguard on his far side of the car and was thus injured. According to the plaintiffs'...