Parave v. Pub. Serv. Interstate Transp. Co.

• Decision Date: 16 May 1932
• Docket Number: Nos. 78, 83, 84.,s. 78, 83, 84.
• Citation: 160 A. 375
• Parties: PARAVE v. PUBLIC SERVICE INTERSTATE TRANSP. CO. (two cases). RACZAK v. SAME.
• Court: New Jersey Supreme Court

160 A. 375

PARAVE

v. PUBLIC SERVICE INTERSTATE TRANSP. CO. (two cases).

RACZAK

v. SAME.

Nos. 78, 83, 84.

Court of Errors and Appeals of New Jersey.

May 16, 1932.

Syllabus by the Court.+++

1. Before the trial court can take away from the jury the question whether or not the negligence of the defendant is the proximate cause of the injury and determine that question himself, the facts must not only be undisputed, but the inference to be drawn from those facts must be such that fair-minded men ought not to differ about them.

2. Negligence is a fact which must be shown. It will not be presumed. There is always a presumption against negligence.

3. The only presumptions of fact which the law recognizes are immediate inferences from the facts proved; and this does not extend to drawing an inference from an inference, or to permit a presumption to arise from a presumption.

4. Evidence examined, and held, that in the case sub judice such facts were proved from which immediate inferences can be drawn of the negligence of defendant, and the resulting deaths of plaintiffs' intestates, as to justify the trial judge in leaving to the jury the questions involved, and that the refusal of the trial court to nonsuit and direct a verdict was proper.

Appeal from Supreme Court.

Separate actions by Frank Parave, administrator ad prosequendum of Joseph Parave, deceased, by Frank Parave, administrator ad prosequendum of Peter Parave, deceased, and by Josephine Raczak, administratrix ad prosequendum of Benjamin Kurzensky, deceased, against the Public Service Interstate Transportation Company, tried together. Judgment in favor of the plaintiff in each case, and the defendant appeals.

Judgments affirmed.

Henry H. Fryling and Henry J. Sorenson, both of Newark, for appellant.

Avis & Avis, of Woodbury, for appellees.

WELLS, J.

This is an appeal from three judgments entered in the Supreme Court on a verdict rendered in favor of the plaintiffs against the defendant in the Gloucester circuit.

The actions were brought under the Death Act (2 Comp. St. 1910, pp. 1907, 1911, §§ 7, 9 and Comp. St. Supp. §§ 55—8, 55—10) to recover damages for the pecuniary loss sustained by the plaintiffs because of the deaths of their intestates in a collision between a Ford car in which the three decedents were riding and an automobile passenger bus owned and operated by the defendant.

The cases were tried together, and on rules to show cause, based only on the excessiveness of the verdicts, two of the verdicts were reduced by the Supreme Court.

The complaints alleged that on October 29, 1930, the decedents were occupants of a Ford automobile which was being operated by Joseph Parave, and proceeding in a southerly direction along the public highway known as Delsea drive in the township of Franklin, county of Gloucester and state of New Jersey; that the defendant was operating its bus along the Delsea drive proceeding in a northerly direction, and that, as the Ford automobile in which the decedents-were riding and the bus of the defendant approached the intersection of the Delsea drive with the public highway leading from Delsea drive to Ionia (known as the Williamstown road), the defendant negligently operated its bus at a high and unlawful rate of speed and without due regard for the rights and safety of other persons using said highway, and negligently failed to have the bus in proper mechanical order and the brakes in good proper working condition, and negligently operated it from the right or easterly side of the Delsea drive to the left or westerly side thereof, so that it collided into and against the automobile in which decedents were passengers, resulting in their deaths.

The answers deny the allegations of the complaints, except the ownership and operation of the bus, and plead contributory negligence on the part of decedents.

At the close of the plaintiffs' case, the appellant moved for nonsuits in all three cases, which motions were denied and exceptions taken thereto. The reasons advanced for the motions for nonsuits were that there was no proof of any negligence nor any proof of any facts which give rise to an immediate inference of negligence which was the proximate cause of whatever had taken place, and that there was no proof in the cases that the decedents were in an automobile which was being operated in a southerly direction along Delsea drive, nor that it collided with the bus of the defendant, nor that an accident took place as the result of negligence which was the proximate cause, on the part of defendant, in which accident the decedents met their deaths.

At the close of the entire case, the appellant moved for the direction of verdicts for the same reasons given in the motions for nonsuits, with the additional reason that the decedents were guilty of contributory negligence.

These motions were also denied, and exceptions taken thereto.

The propriety of the judge's rulings is before us on an appeal from the judgments.

"'A motion for a nonsuit admits the truth of the plaintiff's evidence, and of every inference of fact that can be legitimately drawn therefrom, but denies its sufficiency in law.' * * * And the same rule by parity of reasoning, is applicable as to a motion to direct a verdict for the defendant, based upon the insufficiency of the evidence to establish a legal cause of action." Fox et ux. v. Great Atlantic & Pacific Tea Company, 84 N. J. Law, 726, 87 A. 339, 340, citing Weston Co. v. Benecke, 82 N. J. Law, 445, 82 A. 878, Ann. Cas. 1913D, 11.

"A refusal to nonsuit for failure of proofs will not justify a reversal, if the defect be supplied by evidence thereafter taken during the progress of the cause." Maudsley v. Richardson & Boynton Co., 101 N. J. Law, 561, 129 A. 139, 140.

Counsel for appellant at the argument abandoned the plea of contributory negligence.

A brief recital of the facts as they appeared in the case will, we believe, suffice to dispose of the points advanced by defendant for the reversal of the judgments.

For the plaintiffs, Arthur Merini, an Italian who understood, but could not speak English fluently, testified that on the night of the accident he was proceeding in an automobile in a...