Sakos v. Byers
| Decision Date | 05 January 1934 |
| Docket Number | No. 102.,102. |
| Citation | 169 A. 705 |
| Parties | SAKOS v. BYERS et al. |
| Court | New Jersey Supreme Court |
Appeal from Supreme Court.
Action by Anna Sakos (Sockos), administratrix ad prosequendum of Stephen Sakos, deceased, against Harrison Byers and another. Verdict in favor of plaintiff, and a rule to show cause why the verdict should not be set aside as excessive was discharged if plaintiff consented to a reduction of the verdict, and otherwise made absolute as to damages only by the Supreme Court (168 A. 222, 11 N. J. Misc. 527), and defendants appeal.
Affirmed.
See, also, 109 N. J. Law, 302, 162 A. 580.
Frank G. Turner, of Newark, for appellants.
Silber & Silber, of Newark (Osie M. Silber, of Newark, on the brief), for respondent.
The complaint charges that the death of plaintiff's decedent, Stephen Sakos, an infant of the age of nine years, was the result of defendants' negligence in the operation of an automobile. Plaintiff seeks the recovery of damages for the consequent pecuniary injury suffered, it is said, by decedent's next of kin. There was a verdict for plaintiff, and, from the judgment entered thereon, defendants appeal.
Appellants challenge the trial judge's denial of their motion for a nonsuit and a direction of a verdict, upon the ground that there was an utter absence of evidence of their negligence, and that, even so, the contributory negligence of decedent conclusively appeared.
There was evidence tending to establish the following matters of fact: Decedent, on the afternoon of October 25, 1930, shortly after 2 o'clock, was struck on a public highway by a motor vehicle owned and occupied by appellant Harrison Byers and driven by appellant Mabel B. Byers, his wife, and he concededly suffered injuries which resulted in death. The highway was free of traffic at the time. There was nothing to obscure the view of appellants. A companion of decedent observed him in the "middle of the road" two minutes before he was struck by the automobile. The collision occurred near a bridge that carried the highway over a small stream. This witness was at the bridge. He did not observe the collision, but he heard the "crashing noise." There was no horn or other signal of the approach of the automobile. Decedent was struck by the right front fender of the automobile. He was thrown against the stone wall of the bridge. The automobile struck the bridge with sufficient force to substantially damage it, and, when it came to a stop, decedent was lying on the road at a point three to five feet to its rear. Decedent was "in the center of the road" when appellants first observed him. Harrison Byers testified that when he first saw decedent he was ahead of the automobile, "twelve to fifteen feet, parked right in the middle of the road." The vehicle was then moving at the rate of one and one-half to two miles per hour. He instantly applied the emergency brake, and his wife applied the footbrake. Although he testified that this vehicle, when moving at a speed of ten miles per hour, could be brought to a standstill in approximately fifteen feet, he admitted that the car, after the application of the brakes, moved a distance of between fifteen and twenty feet. When this appellant first saw decedent, he was in the highway at a point twelve feet from the wall of the bridge on the witness' right He was four feet from this wall when struck by the vehicle. Decedent therefore moved in the direction of the wall a distance of eight feet, apparently in an effort to avoid injury. Mrs. Byers testified that when she first saw decedent, he was in the highway five feet ahead of the car. As she approached the bridge, she observed three boys (companions of decedent) to the left of the highway, near the bridge. She sounded her horn. She testified: "I saw these three boys to my left and I blew my horn, thinking that they might go across; and as I did, why, I saw this other fellow (decedent) about five feet in front of me right in the middle of the car." She admitted that she did not know the direction from which decedent came. She testified: "I thought he was going across instead of that, he made a turn and ran to my right; so I turned in that stone wall to try to avoid him as I thought he was going to the...
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