Ryan v. Deans, 45.

• Decision Date: 10 January 1935
• Docket Number: No. 45.,45.
• Parties: RYAN et al. v. DEANS et al.
• Court: New Jersey Supreme Court

176 A. 160

RYAN et al.

v. DEANS et al.

No. 45.

Court of Errors and Appeals of New Jersey.

Jan. 10, 1935.

Syllabus by the Court.

1. An erroneous charge that served merely to increase the burden of proof on the plaintiffs and did not prejudice the appellant defendants is not ground for reversal.

2. The trial court is not bound to charge in the precise language of a request. It is enough that the instruction to the jury substantially covers the request.

3. Unless the proof of the negligence by the plaintiff charged as contributory is so clear and conclusive that the minds of men cannot reasonably differ, the case is one for the jury to determine.

Appeal from Supreme Court.

Action by Thomas Ryan and another against Alexander A. Deans and another. Judgment for plaintiffs, and defendants appeal.

Affirmed.

Thomas F. Doyle, of Jersey City, for appellants.

Frank C. Scerbo, of Morristown, for respondents.

CASE, Justice.

Defendants appeal from judgments rendered on a jury verdict in the Morris Circuit against them and in favor of the plaintiffs for damages arising out of a collision between a motorcycle driven by plaintiff Thomas Ryan and an automobile of the defendants parked at or near the curb of Raymond boulevard in the city of Newark. It appears that Mrs. Deans—party defendant under the name of Harriet Lee—was driving the Deans car and, by a series of misadventures, blew out first one front tire and then the other by repeated bumping against the curb. She left the car late at night parked in the roadway, according to her story adjoining the curb and with the rear light burning, as the plaintiffs' proof puts it away from the curb and with no light, and went for help. While she was gone Ryan came along on his motorcycle, saw the automobile too late to avoid a collision, and the crash followed.

Appellants argue seven points. The first is that the court erred in charging the jury as follows: "You will first ascertain whether the blowing out of the tires was due to her (Mrs. Deans's) recklessness or negligent driving because you must make a comprehensive review and study of all the evidence." It is said, and perhaps truly, that the blowing out of the tires had no proximate bearing upon the issue of negligence; but we find no ensuing harm to the appellants. The court charged the jury that the burden of proving negligence on the part of Mrs. Deans was upon the plaintiffs. Therefore the language complained of served but to increase plaintiffs' burden. The language complained of is but a single sentence in a long paragraph which placed the res gestae and the acts leading up to it in true perspective, laid upon the plaintiffs the burden of proving those immediate acts of negligence which were the proximate cause of the accident, and ended thus: "Therefore, the question to be determined in the first instance will be whether the plaintiff has carried the burden of proof, speaking of the boy now as well as his mother who is also a coplaintiff here, and has produced credible evidence from which the jury may say under the fair preponderance of the proof there was...