Nightengale v. Pub. Serv. Coordinated Transp., 33.
| Citation | 149 A. 526 |
| Decision Date | 20 March 1930 |
| Docket Number | No. 33.,33. |
| Parties | NIGHTENGALE v. PUBLIC SERVICE COORDINATED TRANSPORT. |
| Court | United States State Supreme Court (New Jersey) |
Action by Henry Nightengale against the Public Service Co-ordinated Transport, a corporation of New Jersey. Verdict for plaintiff. On defendant's rule to show cause why verdict should not be set aside.
Rule discharged on condition of remittitur.
Argued October term, 1929, before GUMMERE, C. J., and KALISCH and CAMPBELL, JJ.
Henry H. Fryling, of Newark (William H. Speer, of Newark, of counsel), for the rule.
Evans, Smith & Evans, of Paterson (John P. Evans, of Paterson, of counsel), opposed.
The plaintiff obtained a verdict against the defendant at the Passaic county circuit court for $20,000. The defendant seeks to set the verdict aside for several reasons. Twenty are presented to that end. They are discussed in the defendant's brief under seven heads.
Under the first head it is contended that the verdict is against the clear weight of the evidence, on the issue of negligence on part of the defendant, as well as on the issue of contributory negligence on part of the plaintiff, and the trial judge erred in refusing motion to nonsuit, and for a direction of verdict in favor of the defendant.
Counsel of defendant says that, under this head, reasons Nos. 15, 16, 17 will be discussed.
Starting in with the legal propositions: (1) It is settled law that the court will not grant a nonsuit if there is any testimony tending to show there was negligence on part of the defendant. (2) That unless it clearly appears on part of the plaintiff's case that his negligence was proximately contributory to the defendant's negligent act, a nonsuit cannot be legally granted. The burden of establishing contributory negligence is upon the defendant. (3) A trial judge cannot legally direct a verdict for the defendant, unless it appears from the testimony offered, on behalf of defendant, or from all the evidence in the case, that there is a legal bar to the plaintiff's right of recovery. Where the defendant's testimony merely raises a question of fact, the case must go to the jury. (4) To warrant the setting aside a verdict against the clear weight of the evidence it must appear that it is the product of mistake, partiality, prejudice, or passion.
In the light of those settled legal principles, we have examined the testimony in the case before us with the result that we find, on the issue of negligence of the defendant, there was ample testimony tending to establish such negligence, and, on the issue whether or not the plaintiff contributed to the defendant's negligence, that there was a fair issue of fact raised for the determination of a jury. The verdict of the jury cannot be properly challenged that it was against the clear weight of the evidence.
The plaintiff's action against the defendant company grew out of a collision, between one of the defendant's trolley cars and a Ford automobile owned and operated by the plaintiff, which he was driving south on Main street, a public highway in the city of Paterson, with the result that the plaintiff was grievously injured.
The direction in which the plaintiff was operating his automobile, according to the testimony, required of him, as a careful driver, to give heed to the traffic in the rear of him, as well as to the traffic coming from the north in an opposite direction in which he was driving, and also to give heed to the traffic in Elizabeth street, into which street he was about to turn.
The proof is that he made the cautionary observations, and saw the defendant's trolley car, when it was about two hundred feet away, at which point the plaintiff, after first holding out his hand, as a signal that he was about to turn into Elizabeth street, and while in the act of turning his automobile, was run into by the trolley car.
There is plenary proof that the trolley car was being operated at an excessive rate of speed; that, at the time the plaintiff was turning into Elizabeth street, the trolley car was two hundred feet away therefrom, and, as there was no obstacle in the way to obstruct the view of the motorman, of the plaintiff's automobile, the only permissible inference is that, if the motorman had been on the alert, he could not have failed to have seen the defendant, as he was making the turn.
While it is true the plaintiff had a clear view of the approaching trolley car, he had a right to assume that the motorman was paying due regard to the movement of the traffic ahead of him, and was acting with the ordinary prudence of a prudent man, and therefore had his car under control, so that he (the plaintiff) could make the turn with safety. This ordinary caution, according to the testimony, the motorman did not take.
It appears that after the trial had resulted in a verdict for the plaintiff and a rule to show cause had been allowed by the trial judge to the defendant why a new trial should not be granted, an application was made to the trial judge, presumably on the plea that since the trial, and the granting of the rule, the defendant had discovered new evidence which was material on the issue tried, and therefore asked leave to take depositions in that regard to be used upon the argument before this court upon the rule to show cause, which leave appears to have been granted.
There is nothing appearing in the depositions, or otherwise, that shows the defendant had used due diligence to obtain the testimony they now offer, before trial, or discloses that such testimony, as they now offer, was not known to the defendant, before and at the time of the trial. On what basis this newly discovered evidence is offered, as such, does not appear. We know of no practice which allows the taking of depositions of an alleged newly discovered witness, unless there is a basis laid therefor, by affidavit. We find none in this case.
It appears that, after the trial which had resulted in a verdict for the plaintiff, February 14, 1929, ...
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...where the proofs showed such loss to be the proximate result of the damage to the motor vehicle. Nightengale v. Public Service Co-ord. Transport, 8 N.J.Misc. 238, 149 A. 526 (Sup.Ct.1930). In the instant case defendant seeks compensation for towing and storage charges as part of his consequ......
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...loss of profits. Other cases have recognized that proof of loss of profits may sustain such an award, Nightengale v. Public Service Co-ordinated Transport, 8 N.J.Misc. 238, 149 A. 526, 529; Davis v. Mrs. Baird's Bakery, Tex.Civ.App., 30 S.W.2d 809, 810. This latter may be in some manner enc......
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