Shuster v. McDermit

• Decision Date: 06 February 1928
• Citation: Shuster v. McDermit, 104 N.J.L. 58, 140 A. 421 (N.J. 1928)
• Court: New Jersey Supreme Court
• Parties: WILLIAM SHUSTER, RESPONDENT, v. MATHEW P. A. McDERMIT, APPELLANT

140 A. 421

SHUSTER

v. McDERMIT et al.

Court of Errors and Appeals of New Jersey.

Feb. 6, 1928.

Appeal from Supreme Court.

Action by William Sinister against Mathew P. A. McDermit and another. Judgment for plaintiff, after dismissal as to unnamed defendant, and named defendant appeals. Reversed.

Wight, Wight & Golenbock, of Perthamboy, for appellant.

Welcome W. Bender, of Elizabeth, for respondent.

GUMMERE, C. J. This action was brought in the Supreme Court to recover compensation for personal injuries received by the plaintiff in a collision between an automobile truck which he was driving and an automobile belonging to the fire department of the city of Newark and appropriated by it to the use of Mathew McDermit, deputy fire chief, and being driven by one McCormick, a member of the department, and assigned by it to that duty. The defendants were McDermit and McCormick, and they were on their way to a fire when the collision occurred. The plaintiff's claim was that the accident was the result of driving at an excessive rate of speed by the latter at an intersecting street corner in Newark, and that McDermit was responsible, as well as McCormick, because the latter was acting as the agent of the former when the collision occurred. The trial resulted in a verdict in favor of the plaintiff and against McDermit (the plaintiff having discontinued as against McCormick at the close of the testimony), and McDermit has appealed from the judgment entered on that verdict.

The principal ground upon which we are asked to reverse the judgment under review is that, on the facts proved, McDermit. could not be held responsible for the careless driving of McCormick; that there was nothing indicating carelessness on his part contributing to the accident; and that therefore it was error for the trial court to refuse to direct a verdict in his favor when requested to do so at the close of the case.

The two defendants were engaged in a common...