Osbun v. De Young

• Decision Date: 19 November 1923
• Parties: OSBUN v. DE YOUNG et al.
• Court: New Jersey Supreme Court

122 A. 809

OSBUN

v. DE YOUNG et al.

Court of Errors and Appeals of New Jersey

Nov. 19, 1923.

Parker, J., dissenting.

Appeal from Supreme Court

Action by Alfred Osbun against Samuel W. De Young and another, partners trading under the firm name and style of Young & Garllimund. and another. From a judgment for plaintiff, defendants appeal. Affirmed.

John A. Matthews, of Newark (Grosken & Moriarty, of Newark, on the brief), for appellants.

Coult & Woodruff, of Newark (Joseph Coult, Jr., of Newark, of counsel), for respondent.

KALISCH, J. The facts which are pertinent to the legal questions presented on this appeal are these: The respondent, plaintiff below, was standing behind an auto truck which stood alongside of the westerly sidewalk of Marshall street, a public street in the city of Paterson, and, while he was engaged in loading the truck, he was hit and seriously injured by an automobile operated by the defendants' servant. The truck was facing south, and it was struck in the rear by defendants' automobile, which came from a northerly direction. The street was paved with asphalt. The collision occurred at night, between 9 and 10 o'clock. The defendants' servant testified that it was "a very stormy night, foggy, raining; drizzly rain"; that the pavement was wet and slippery; that at the time when he first saw the truck his automobile was going at a speed of about 14 or 15 miles an hour; that there was a brightly burning are light "right opposite the truck," which blinded his view to such an extent that it prevented him from seeing it till he was about 8 or 10 feet away; and that he then put on his brakes, and made an attempt to avoid a collision, but the car skidded on the wet and slippery pavement, and slid into the left rear of the truck; that he saw no light on the rear of the truck; that he could see with the headlights on his car about 40 feet on that night; that there were no other vehicles on the street; that the automobile was the property of the defendants, but that on the night of the accident he was not driving the car on the defendants' business, but for his own pleasure and that of his companions.

On behalf of the plaintiff there was testimony which tended to establish that there was a lighted lantern suspended from the rear of the truck in close juxtaposition to the license plate, and that there was also a tail light lit; that the defendants' car shortly before the collision was being propelled at a high rate of speed along and near the center of the street, and, as it neared the truck, suddenly swerved into the rear of it, and where the plaintiff was in the act of loading it; that one of the defendant partners made a statement to one of the plaintiffs witnesses that the automobile in question was the property of the firm, and that the driver thereof at the time of the accident was in its employ, and was demonstrating it with the permission of the firm.

Some of the facts as above detailed were disputed and some were not. The facts were exclusively within the province of the jury to determine.

There was a motion for a nonsuit at the close of the plaintiff's case, and a motion for a direction of a verdict for defendants at the end of the cause, both of which motions were refused, and properly so. For it is quite obvious that, If the jury believed the testimony on behalf of the plaintiff, it was warranted in finding negligent operation of the automobile by the defendants' servant, who was driving it, at the time of the accident, on the defendants' business.

Much space is devoted in appellants' brief in support of their contention that the jury's verdict was against the weight of the evidence.

There can be no good excuse offered why an elementary legal rule should be so often disregarded by counsel in arguing on the weight of the evidence in a civil case at law, on appeal before this court, which is only concerned with correcting errors in law. With the credibility of the witnesses or the weight of the evidence we have no concern.

1. The contention that there was no testimony to warrant a jury to find that the appellants' servant, who was driving the automobile, was at the time of the accident engaged on the appellants' business, appears from a careful reading of the testimony to be without substance. The fact whether or not the defendants' servant was engaged on their business on the night of the collision was disputed, and this question was properly submitted by the court to the jury for its determination.

Upon that point the court was requested by counsel of appellants to charge "that even if the jury believe the testimony of Stevenson that De Young told him that Welsh had taken the car with permission to demonstrate it, they must find further in order to render a verdict for the plaintiff that, in driving the car along Marshall street en Christmas Eve, December 24, 1921, Welsh was acting with the authority of the defendants and in the course of his employment." with which request the court complied.

2. It is further urged on behalf of the appellants that the trial judge, in commenting in his charge to the jury upon the duty of the driver in operating his car on a public street under the conditions which then prevailed, with the additional fact that the driver testified that a brightly burning arc light blinded him so that he did not see the truck until he got within 8 or 10 feet of it, committed prejudicial error in saying to the jury, "He says" (referring to the driver) "one reason he did not see the people was that his vision was obscured by a street light, and upon that phase of the case our courts have said that, if his vision was temporarily destroyed, it was his duty to stop his car and endeavor to so adjust his means of vision that his vision was restored." This statement of the duty of the driver was stated with legal accuracy. Newark Passenger Ry, Co. v. Block, 55 N. J. Law. 605, 27 Atl. 1067, 22 L. R. A. 374; Consolidated Traction Co. v. Haight, 59 N. J. Law, 577, 37 Atl. 135; Conkling v. Erie R. Co., 63 N. J. Law, 338, 43 Atl. 666; Hackney v. West Jersey & Seashore R. R. Co., 78 N. J. Law, 454, 78 Atl. 747, 32 L. R. A. (N. S.) 266.

In Hammond v. Morrison, 90 N. J. Law, 15, 100 Atl. 154, the excuse set up by the defendant as an exoneration of liability for his act, which was complained of as tortious, was that, just before the collision, the street lights which he had passed were reflected into his eyes by the windshields of his automobile so that he was unable to see in front of him, and that this temporary blindness was the cause of the collision. At page 16 of 90 N. J. Law, at page 154 of 100 Atl., Gummere, C. J., who delivered the opinion of the Supreme Court, clearly and aptly stated the common sense rule, as follows:

"No man is entitled to operate an automobile through a public street blindfolded. When his vision is temporarily destroyed in the way in which the defendant indicated, it is his duty to stop his car, and so adjust his windshield as to prevent its interfering with his ability to see in front of him. The defendant, instead of doing this, took the chance of finding the way clear, and ran blindly into the trolley car behind which the decedent was standing. Having seen fit to do this, he cannot escape responsibility...