Nusser v. United Parcel Serv. Of N.Y. Inc.

• Decision Date: 06 April 1949
• Docket Number: No. A-166.,A-166.
• Citation: 65 A.2d 549
• Parties: NUSSER v. UNITED PARCEL SERVICE OF NEW YORK, Inc.
• Court: New Jersey Superior Court

65 A.2d 549

NUSSER

v.UNITED PARCEL SERVICE OF NEW YORK, Inc.

No. A-166.

Superior Court of New JerseyAppellate Division, Part A.

April 6, 1949.

Appeal from Essex County Court.

Action for personal injuries and for damages to truck by Otto Nusser, Sr., against United Parcel Service of New York, Inc., a corporation. From a judgment for the plaintiff, the defendant appeals.

Affirmed.

Before JACOBS, Senior Judge, and EASTWOOD and BIGELOW, JJ.

Leslie S. Kohn and Harvey A. Lieb, both of Newark (Maurice J. McKeown, of Newark, of counsel), for plaintiff-respondent.

John W. Taylor, of Newark, for defendant-appellant.

EASTWOOD, Judge.

Defendant appeals from an adverse judgment entered in favor of plaintiff for $15,000 with costs, as the result of a jury trial before the Law Division of the Essex County Court. It asserts as its grounds of appeal: (1) ‘The jury verdict is contrary to the weight of the evidence’; (2) that the amount of the verdict is excessive and (3) that a ‘Partnership expenditure is not an element of plaintiff's damage’.

Plaintiff's action is grounded on the allegation that the negligent operation of defendant's motor truck was the proximate cause of plaintiff's damages. Defendant denied the charge of negligence and affirmatively asserted that plaintiff's negligence contributed to the causing of his damages and assumption of risk. The collision between the parties' vehicles occurred on April 5, 1946, at the approximate center of the intersection of East Seventh Street and Leland Avenue, Plainfield, New Jersey. Plaintiff's motor truck was operated by his son, Egon Nusser, in a westerly direction on Leland Avenue. Defendant's truck was operated by defendant's employee, in a southerly direction on East Seventh Street. The injuries suffered by plaintiff consisted of a fracture of the superior ramus of the public bone and a fracture through the lower part of the descending ramus of the ischium. He was incapacitated from the date of the accident until he returned to his place of business the day following Labor Day, 1946.

At the trial, defendant did not move for an involuntary dismissal or a directed verdict. Nor did it apply to the trial court for a new trial.

Considering the first ground of appeal, we disagree with defendant's contention that the verdict was against the weight of the evidence. Defendant chose to apply for a new trial by way of appeal to this court under Rule 4:2-1 rather than an application to the trial court under Rule 3:59-1. Under Rule 3:59-5, if defendant had applied to and had been denied a new trial by the trial court, it would have been barred from taking an appeal on any ground stated in the motion or argued at the hearing. Our province, we think, is to decide the appeal on the same legal principles that would have applied if the application had been made to the trial court. Plaintiff contends that defendant's failure to move for an involuntary dismissal or a directed verdict at the trial precludes it from prosecuting this appeal. Under the applicable Rules defendant may elect as to whether it will proceed under Rule 3:59-1 for a new trial before the trial court or by way of an appeal under Rule 4:2-1. Defendant does not seriously dispute the assertion that there was sufficient competent evidence to submit the case to the jury. By the very nature of ground (1) of the appeal, plaintiff concedes that such was the situation here. Therefore, the question for our consideration and determination is: Would this court be justified in disturbing the verdict on this ground? We think not. The testimony profferred by the respective parties was in sharp conflict. It is the settled law of this State that where, in the consideration of conflicting testimony, the facts found by the jury will sustain the verdict, it should not be set aside merely because, in the opinion of the court, the jury might have found otherwise, Knickerbocker Ice Co. v. Anderson, Sup.Ct.1865, 31 N.J.L. 333; Queen v. Jennings, Sup.Ct.1919, 93 N.J.L. 353, 108 A. 379; Bennett v. Busch, Sup.Ct.1907, 75 N.J.L. 240, 244, 67 A. 188; Finnegan v. Goerke Co., Err. & App. 1929, 106 N.J.L. 59, 147 A. 442, or merely because we might, if required to determine the facts, have reached a different conclusion. As was stated in Cascone v. Hendrickson, Sup.Ct.1930, 8 N.J.Misc. 229, 149 A. 337, 338: ‘It seems to be necessary to repeatedly state, that the verdict of a jury will not be set aside upon the ground that it is against the weight of the evidence, unless the verdict clearly evinces that it is the result of mistake, partiality, prejudice or passion.’

The burden of proving contributory negligence on the part of plaintiff fell upon defendant and its determination was properly a jury question. Obviously, the jury found that the defendant had not borne this burden. Mayes v. Splitdorf Electrical Co., Err. & App. 1920, 94 N.J.L. 460, 111 A. 10; Rochford v. Stankewicz, Err. & App. 1931, 108 N.J.L. 265, 158 A. 386. The facts here are not at all unusual. It was an intersectional accident, a rather common occurrence. Each party charges the other with negligence as the proximate cause of the collision. Our review of the testimony convinces us that there was sufficient competent evidence to support the verdict.

As to the second ground of appeal, we conclude that, under all the circumstances,...