Rich v. Cent. Electrotype Foundry Corp.

• Decision Date: 12 January 1939
• Citation: 121 N.J.L. 481,3 A.2d 584
• Parties: RICH et al. v. CENTRAL ELECTROTYPE FOUNDRY CORPORATION et al.
• Court: New Jersey Supreme Court

3 A.2d 584

121 N.J.L. 481

RICH et al.

v. CENTRAL ELECTROTYPE FOUNDRY CORPORATION et al.

Supreme Court of New Jersey, Monmouth County.

Jan. 12, 1939.

Action of tort by Martha Jane Rich, an infant, by Charles Rich, her next friend, and others against the Central Electrotype Foundry Company, a corporation of New Jersey, Walter A. Jacobs and others for injuries sustained by the infant plaintiff in an automobile collision, wherein there was a verdict and judgment in favor of the infant plaintiff against the named defendants. On rule to show cause why the verdict should not be set aside and a new trial granted.

Rule discharged.

Argued before Justice PERSKIE, at chambers, pursuant to statute.

Francis A. Gordon, of Elizabeth, for plaintiffs.

Lester C. Leonard, of Red Bank, for defendants.

PERSKIE, Justice.

This cause is before me on the return of a rule to show cause why a jury verdict of $10,000 in favor of the infant plaintiff, and against defendants, Central Electrotype Foundry Company and Walter A. Jacobs, should not be set aside and a new trial granted.

In limine, I mark the fact that I undertook the consideration and disposition of this rule, with the written consent of counsel for the respective parties, because Judge Lawrence, before whom this cause was tried, died before disposing of this rule which he had allowed.

This is a tort case. As indicated, it was tried before Judge Lawrence and a jury at the Monmouth County Circuit. The alleged actionable negligence of all defendants arises out of a collision between two automobiles on August 1, 1936, at about 7:30 P. M. (D. S. T.). More as to the details thereof later.

The infant plaintiff was a passenger in the car owned by defendant John I. Spooner and driven by defendant George I. Spooner. This car, while crossing an intersection, collided with a car owned by defendant Central Electrotype Foundry Company and driven by defendant Walter A. Jacobs. As a result of that collision the infant plaintiff sustained serious injuries (among others, permanent facial disfigurement) for which she sued all named defendants, individually and jointly. The infant's father joined in the suit to recover medical and incidental expenses. The infant's father and mother both sued to recover for loss of services. They however, took a voluntary nonsuit as to this joint claim for services and a judgment of nonsuit was accordingly entered thereon. The jury returned a verdict of $10,000 in favor of the infant plaintiff and against defendants Central Electrotype Foundry Company and Walter A. Jacobs; the jury found in favor of the Spooners individually and jointly, and the jury found in favor of all defendants on the claim of the infant's father for his medical and incidental expenses. Judgment was entered on the verdicts so rendered. Hence the rule to show cause.

First. It is urged that the verdict is against the weight of the evidence. I do not think so. The accident occurred at the intersection of Lincoln and Fifth Avenues, in the Borough of Avon, Monmouth County, New Jersey. Defendant Jacobs was driving on Fifth Avenue in a southerly direction, towards Lincoln Avenue, and defendant Spooner was driving on Lincoln Avenue in a westerly direction towards Fifth Avenue. There was evidence to the effect that Spooner was proceeding at a moderate rate of speed and was more than half way across the intersection when the car he was driving was struck by the car which was driven by Jacobs. The physical facts tended to indicate that the Spooner car was pushed, by force of the collision in a southerly direction clear across the highway and struck a tree at about the southwest corner of the intersection. Photographs and other testimony further tended to corroborate Jacobs' negligence. There was, of course, testimony tending to place the culpability for the accident upon Spooner. Under these conflicting proofs the learned trial judge properly instructed the jury that they might find that either Jacobs or Spooner, or both, were negligent. It is well settled that trial courts will not set aside a verdict as against the weight of the evidence unless all the facts and circumstances clearly sustain the inference that it was the result of mistake, passion, prejudice or partiality. Floersch v. Donnell, 82 N.J.L. 357, 359, 82 A. 733; Juliano v. Abeles, 114 N.J.L. 510, 511, 177 A. 666; DeFronzo v. Public Service Co-Ordinated Transport, 116 N.J.L. 116, 118, 182 A. 640. There is no such showing here. The proofs fully support the verdict.

Second. Defendants, however, argue that the verdict was the result of passion or prejudice because of the improper question which counsel for plaintiff asked Jacobs. The latter testified that he had been driving a car for about 19 years. He was asked whether he was still driving and his answer was "Yes." Counsel for plaintiff then asked the objectionable question: "Q. Have you a license? A. Not at present, no." The same question in substance was repeated and...