Reti v. Vaniska, Inc., A--293

• Decision Date: 21 June 1950
• Docket Number: No. A--293,A--293
• Citation: 8 N.J.Super. 275,74 A.2d 322
• Parties: RETI v. VANISKA, Inc., et al.
• Court: New Jersey Superior Court — Appellate Division

Page 275

8 N.J.Super. 275

74 A.2d 322

RETI v. VANISKA, Inc., et al.

No. A--293.

Superior Court of New Jersey Appellate Division.

Argued June 12, 1950.

Decided June 21, 1950.

Jacob E. Max, Jersey City, argued the cause for appellant (Bernard Chazen, Newark, on the brief).

William H. D. Cox, Newark, argued the cause for respondents (Cox & Walburg, Newark, attorneys).

Before Judges McGEEHAN, COLIE and EASTWOOD.

The opinion of the court was delivered by

McGEEHAN, S.J.A.D.

Defendants' motion to dismiss, made at the end of the plaintiff's opening, was granted and the plaintiff appeals from the judgment of dismissal entered thereon in the Union County Court, Law Division.

In the plaintiff's opening it was stated that his suit was against Vaniska, Inc., the owner of a taxicab, and William Gisinger, an employee of Vaniska, Inc., who operated the taxicab, and that Gisinger, while operating the taxicab, stopped and left it unlocked, unattended, and with the key in the ignition. While the taxicab was unattended, unlocked and with the key in the ignition, another man came along and drove away in the taxicab. This person was intoxicated and drove the car carelessly and negligently into the vehicle that the plaintiff was driving, and as a result the plaintiff was injured. Further, 'we will prove that the defendant Vaniska, Incorporated, through William D. Gisinger, the taxi driver, was negligent and careless in that they did not do what was reasonably and prudently required of them, that is to lock this vehicle or not to leave it unlocked and unattended at the time, and that was the proximate cause of the occurrence that occurred later on in which this plaintiff was injured.'

The defendants' attorney then asked if the plaintiff claimed that the man who was driving the taxicab at the time of the accident was in the employ of the defendant, Vaniska, Inc., or was requested to drive the taxi by either defendant. When the plaintiff admitted that he made no such claim, the defendant moved for dismissal on behalf of both defendants 'on the ground that there is no evidence or no offer to prove any evidence which would indicate any negligence upon the part of either of these defendants, would be the proximate cause of the happening of the accident to Mr. Reti.'

In answer to questions by the court, the plaintiff admitted that some strange person other than defendant was driving the car; that such person was not driving as agent of either of the defendants; and stated that the plaintiff's claim was that this strange person negligently drove into the plaintiff's car with the taxicab which the defendants had negligently left unlocked and unattended. The court then granted the motion for dismissal on the ground that 'it is obvious from the plaintiff's opening that this collision is charged to have occurred because of the negligence of an intervening agency which had no relation whatever to the defendants and that no cause of action has been shown by the opening.'

Over forty years ago, in Kelly v. Bergen County Gas Co., 74 N.J.L. 604, 67 A. 21, 22 (E. & A.1907), Chancellor Magie, in dealing with a case in which the trial judge had directed a nonsuit upon the opening of a plaintiff, said:

'A motion for a nonsuit upon the opening of counsel is not frequently resorted to. In dealing with it, it is obvious that the rule which is applied to a motion for a nonsuit at the close of plaintiff's evidence is the one which should be applied. In both cases, the question presented is whether the facts stated or proved, and reasonable inferences which may be drawn therefrom,...