Smith v. James J. McFeely, Inc., 17.

• Decision Date: 05 December 1934
• Docket Number: No. 17.,17.
• Parties: SMITH et al. v. JAMES J. McFEELY, Inc.
• Court: New Jersey Supreme Court

175 A. 368

SMITH et al.

v. JAMES J. McFEELY, Inc.

No. 17.

Supreme Court of New Jersey.

Dec. 5, 1934.

Appeal from Court of Common Pleas, Hudson County.

Action by Charles T. Smith, by Marie Smith, his next friend, and Marie Smith individually, against James J. McFeely, Incorporated. From a judgment in favor of the plaintiffs, the defendant appeals.

Affirmed.

Argued May term, 1934, before BROGAN, C. J., and PARKER and BODINE, JJ.

Charles Stockdell Gray, of Newark (Reynier J. Wortendyke, Jr., of Newark, of counsel), for appellant.

George M. Eichler, of Hoboken (Henry Joseph, of Hoboken, of counsel), for appellees.

PER CURIAM.

This appeal is from a judgment recovered in the Hudson county court of common pleas by the plaintiffs.

There is only one point involved in the appeal, and that is that the trial court denied defendant's motion for nonsuit and for direction of verdict. These motions were based upon the proposition that the evidence in the plaintiffs' case failed to justify an inference of negligence on the part of the defendant It appears that one of the defendant's trucks broke down on Willow avenue, in the city of Hoboken, N. J.; the left rear wheel having collapsed. The steel rim was taken off the damaged wheel and placed against a pole in a leaning position, the bottom resting in the gutter. The infant plaintiff, with others, was playing on the street close by, and the children were attracted to the accident. The testimony disclosed that one of the boys in the crowd attempted to lift the wheel to show how strong he was and that it fell on plaintiff's foot. On motion for a nonsuit or for a direction of a verdict for the defendant, the rule is that the evidence adduced must be viewed in a light most favorable to the plaintiff, together with all the legitimate inferences such evidence will support. The jury was entitled to infer that leaving the heavy steel wagon rim leaning against the pole, unguarded, was an act that an ordinarily prudent person would not do. The defendant must have recognized, or if it did not is chargeable with the knowledge, that a heavy object, placed as stated, was, under the circumstances, potentially dangerous and capable of harm. We think therefore that the motions were properly denied.

It is further argued that the evidence in the case is not sufficient to justify an inference that the negligence of the defendant was the proximate cause of the plaintiff's injury. We think that it was. It is argued that even...