Smith v. Montclair Brown & White Cab Co.

• Decision Date: 18 January 1928
• Docket Number: No. 437.,437.
• Citation: 139 A. 904
• Parties: SMITH et al. v. MONTCLAIR BROWN & WHITE CAB CO. et al.
• Court: New Jersey Supreme Court

139 A. 904

SMITH et al.

v. MONTCLAIR BROWN & WHITE CAB CO. et al.

No. 437.

Supreme Court of New Jersey.

Jan. 18, 1928.

Appeal from First Judicial District of Essex County.

Action by Donald H. Smith and others against the Montclalr Brown & White Cab Company, of New Jersey, and another. From a judgment for plaintiffs, defendants appeal. Affirmed.

Argued October term, 1927, before PARKER, MINTURN, and CAMPBELL, JJ.

George F. Seymour, Jr., of Newark, for appellants.

Anthony Darrow Appice, of Montclair, for appellees.

PER CURIAM. This case arose out of a collision between a Ford coupe owned and driven by the plaintiff Donald H. Smith and a Brown and White taxi cab belonging to the defendant company, and operated by one of its drivers. The accident occurred about 11 p. m. in Montclair. The plaintiff Donald H. Smith had with him in the coupé his wife, Elizabeth, and two others, including the plaintiff Louise Skidmore. Plaintiff, going north on Willow avenue on his right-hand side of the road, desired to turn around, and, seeing a private roadway on his right, turned into it with the intention of backing out and swinging toward his left until he was faced the other way on Willow avenue, and then starting down Willow avenue toward the south. He testified that his headlights were lit; that he blew his horn before backing; and that he looked both ways, and saw nothing. As he was backing out of the driveway, the defendant's taxi cab also came north on Willow avenue, caught Smith's car on the right-hind wheel and damaged the car, and shook up its occupants somewhat.

The court, sitting without a jury, overruled a counterclaim of negligence on Smith's part, and awarded a judgment in favor of Donald Smith of $21, Elizabeth Smith $50, and Louise Skidmore $75. An outside witness who was sworn for the plaintiff said that the taxicab was going 40 miles an hour, and the driver of the taxicab said that he did not see any light.

The first ground of appeal is that the judge refused a motion to nonsuit, as no negligence was shown on the part of the appellants. We think a question of fact was raised on this point, and that the court was entitled to hold that the defendant's driver Chandler was negligent.

The second ground of appeal is "that the trial judge had no right to assume at the close of plaintiffs' case that, if a car is going 40 miles per hour, it might be possible that the plaintiff, when he looked, did not see the approaching car of the defendant." This points to no judicial action, and is futile as a ground of appeal.

The third ground of appeal is that, because at the close of the defendant's case, there was evidence of contributory negligence on the part of the plaintiffs, and this also points to no judicial action.

The fourth ground of appeal is that the trial court refused a motion for a...