Nichols v. Grunstein, 28.
| Decision Date | 04 February 1929 |
| Docket Number | No. 28.,28. |
| Citation | 144 A. 593 |
| Parties | NICHOLS v. GRUNSTEIN. |
| Court | New Jersey Supreme Court |
Syllabus by the Court.
Appeal from Supreme Court.
Suit by Clark H. Nichols, administrator ad prosequendum of Catharine Nichols, deceased, against Benjamin Grunstein. Judgment for plaintiff, and defendant appeals. Affirmed.
Alexander M. MacLeod, of Paterson (George L. Record, of Jersey City, of counsel), for appellant.
William George, of Jersey City, for respondent.
This suit was brought under the Death Act (2 C. S. 1910, p. 1907, § 7) to recover the loss sustained by the next of kin in the death of Catharine Nichols, a little girl "about seven years old," who was run over and killed by a motortruck belonging to the defendant. The jury rendered a verdict in favor of the plaintiff, and, from the judgment entered thereon, the defendant has appealed.
The first ground of appeal is that the judgment should be reversed because of error on the part of the trial court in refusing defendant's motion to nonsuit. This motion was based upon the assertion that the child was guilty of contributory negligence as a matter of law.
We cannot say that the child was guilty of contributory negligence as a matter of law. Between the time in life when a person is incapable of exercising the care and judgment necessary to avoid and avert danger, and the time when such person is in law an adult and responsible as such, there is a transition period during which responsibility depends on matters of fact, and in this transition period such person may or may not be guilty of contributory negligence.
The degree of care required of a child old enough to be capable of negligence is such as is usually exercised by persons of similar age, judgment, and experience. In order to determine whether such a child has been guilty of contributory negligence, it is necessary to take into consideration the age of the child, and its experience and capacity to understand and avoid danger to which it is exposed in the actual circumstances and situation under investigation, and it is usually a question for a jury to determine whether the child has been guilty of contributory negligence. David v. W. J. & S. R. Co., 84 N. J. Law, 685, 87 A. 440.
Now the accident in question occurred at the corner of Second street and Jersey avenue, in Jersey City. The child, "about seven years old," was on her way home from school, with her brother, who was some two or three years older than she. As the defendant's truck was approaching, but was some distance away, the little girl started to run across the street, pulling her hand away from her brother, who had hold of it. He called to her to stop, because he observed the truck, which he said was moving rapidly toward them. The little girl did not stop, and he ran after her, but was not able to overtake her in time to prevent the accident. It seems to us, in view of the age of the child and of the circumstances which we have related, namely, running away from her brother, who, she perhaps thought, was chasing her as a matter of sport, the question of the child's contributory negligence was for the jury and not for the court.
The second ground of appeal is that the judge erred in refusing to direct a verdict for the defendant. That motion was rested upon the contention that the accident occurred while the driver of the truck was not in the service of the defendant, his employer. That contention in turn is based on the fact that,...
To continue reading
Request your trial
-
Hellstern v. Smelowitz
...of the infant plaintiff was at the trial submitted to the jury and the resultant judgment was affirmed. Nichols v. Grunstein, 105 N.J.L. 363, 364, 144 A. 593 (E. & A. 1929). Counsel in advocating (in this case) the application of the conclusive presumption have evidently experienced some al......
-
Hoff v. Natural Refining Products Co., A--780
...A. 160, 161 (E. & A.1937), in reversing a nonsuit granted on the basis of contributory negligence, quoted from Nichols v. Grunstein, 105 N.J.L. 363, 144 A. 593 (E. & A.1929), to the following "Between the time in life when a person is incapable of exercising the care and judgment necessary ......
-
Scheck v. Houdaille Const. Materials, Inc.
...118 A.2d 714 (App.Div.1955). See also Dobrzynski v. Liveright, 118 N.J.L. 589, 591, 194 A. 160 (E. & A. 1937); Nichols v. Grunstein, 105 N.J.L. 363, 144 A. 593 (E. & A. 1929). * * * If the justification for expanding the liability of the possessor of land as to trespassing children is found......
-
Coopersmith v. Kalt
...respondent rest heavily upon the holdings in the cases of Michael v. Southern Lumber Co., 101 N.J.L. 1, 127 A. 580, and Nichols v. Grunstein, 105 N.J.L. 363, 144 A. 593. We are of the opinion, however, that the facts of these cases are clearly distinguishable from the facts in the case at b......