Middleton v. Pub. Serv. Co-ordinated Transp..

• Decision Date: 23 March 1944
• Docket Number: No. 13.,13.
• Parties: MIDDLETON v. PUBLIC SERVICE CO-ORDINATED TRANSPORT.
• Court: New Jersey Supreme Court

131 N.J.L. 322

36 A.2d 393

MIDDLETON

v.PUBLIC SERVICE CO-ORDINATED TRANSPORT.

No. 13.

Court of Errors and Appeals of New Jersey.

March 23, 1944.

Appeal from Circuit Court, Union County.

Action by Charles Middleton, an infant, by his next friends Charles J. Middleton and another, and Charles J. Middleton and another, individually, against Public Service Co-ordinated Transport, a corporation of New Jersey, to recover damages resulting from an automobile accident. From a judgment for plaintiffs, defendant appeals.

Affirmed.

Justices PARKER, CASE, DONGES, HEHER, and COLIE, and Judges DEAR and WELLS, dissenting.

Henry H. Fryling, William H. Speer, and Richard Fryling, all of Newark, for defendant-appellant.

John W. McGeehan, Jr., of Newark, for plaintiffs-respondents.

BODINE, Justice.

The present action was brought by the parents and their child to recover damages for injuries suffered on September 13, 1942, when he was struck by one of the defendant's automobile busses at a street intersection in the city of Newark. The infant plaintiff had a verdict for $10,000, which was not reduced on rule, but that in favor of his parents was reduced to $1,000.

The issues in the case were negligence and contributory negligence. The learned trial judge presented these issues to the jury in such a manner that they were not challenged except in one particular.

The appellant charges the sole error to have been the charging of plaintiffs' counsel's sixth request to charge. To properly understand this request the prefatory remarks of the trial judge must be examined. The meaning of a charge is not to be determined by a separation of a part from the whole. It is not to be viewed in any sense other than it would have been understood by the jurors. Lyon v. Fabricant, 113 N.J.L. 62, 172 A. 567; Thompson v. Corbin and Lee, 117 N.J.L. 370, 189 A. 360.

The acid test is, would the jury be misled? Lenz v. Public Service R. Co., 98 N.J.L. 849, 121 A. 741. See also Evans v. New Jersey Central Power & Light Co., 119 N.J.L. 88, 194 A. 144.

The learned trial Judge having faultlessly charged the law as it related to the issues presented for the determination of the jury said: ‘There has been considerable discussion here, and there are some regulations with reference to the Traffic Act and alleged violations of it. I will quote you the Traffic Act as I find it, verbatim, so that there cannot be any misunderstanding on your part, or mine, as to what the phraseology * * * may be. Let me say to you in passing that violations of this Traffic Act are not of themselves necessarily negligence per se, but they are circumstances, taken into consideration with all the other evidence in the case that will and must be taken into consideration by you, if they exist, in determining whether or not the vital question that must eventually be determined, namely, whether there is any responsibility or not, * * *. I have been requested by the plaintiff first to charge a number of requests, and as I say, they seem, as I glance over them, to be quotations from the Traffic Act, which I will read * * *’. He then read the pertinent portions of R.S. 39:4-32 and R.S. 39:4-126 N.J.S.A.,...