Oppicci v. Erie R. Co.

• Decision Date: 17 November 1919
• Docket Number: No. 54.,54.
• Citation: 108 A. 759
• Parties: OPPICCI v. ERIE R. CO.
• Court: New Jersey Supreme Court

108 A. 759

OPPICCI

v. ERIE R. CO.

No. 54.

Court of Errors and Appeals of New Jersey.

Nov. 17, 1919.

Appeal from Supreme Court.

Action by Joseph Oppicci against the Erie Railroad Company. From judgment for plaintiff, defendant appealed to the Supreme Court, which reversed, and plaintiff appeals.

Affirmed.

George S. Hobart and Edward A. Markley, both of Jersey City, for appellant.

Peter J. McGinnis, of Paterson, for respondent.

SWAYZE, J. This was an appeal from the Paterson district court. Only the determination or direction of the district court in point of law or upon the admission or rejection of evidence was open in the Supreme Court. C. S. 2016, pl. 213a. Pratt v. Union National Bank, 81 N. J. Law, 588, 80 Atl. 492; Lavin v. Public Service Ry. Co., 77 N. J. Law, 217, 71 Atl. 58. It was not open to the Supreme Court to affirm, as it did, the liability of the defendant and reverse the judgment of the district court as to damages unless there was legal error as to the rule of damage. There was no such error. There was evidence as to the amount of damages. What the Supreme Court held was that this evidence was too uncertain and inadequate on which to base the verdict of the jury. This procedure treated the case as if it were before the court on a rule to show cause instead of a statutory appeal. It was beyond the power conferred on the court. Moreover, the court entered a judgment remitting the record for a new trial, as to the question of damages only, apparently on the theory that such a judgment was permitted by rule 132. This was error. The rule applies only to cases where the damages are excessive or inadequate. No such case is before us; it is only the evidence on the question of damages, not the amount, that was held by the Supreme Court to be inadequate. The error would require a reversal if it were properly presented. It is not. The plaintiff who was injured by the reversal of the district court did not appeal, and seems to have been content with the affirmance of the defendant's liability. The defendant was careful to limit his causes of appeal to errors harmful to him. We cannot therefore reverse the Supreme Court unless we find some error injurious to the defendant. The error in remitting to the district court for a new trial as to damages is not injurious to the defendant, and is not complained of. As to that part of the judgment which affirms defendant's liability, we agree with the Supreme Court, and find no error in this...