Stappenbeck v. Jagels Fuel Corp..

• Decision Date: 27 January 1944
• Docket Number: No. 6.,6.
• Citation: 131 N.J.L. 215,35 A.2d 631
• Parties: STAPPENBECK v. JAGELS FUEL CORPORATION et al.
• Court: New Jersey Supreme Court

131 N.J.L. 215

35 A.2d 631

STAPPENBECK

v.JAGELS FUEL CORPORATION et al.

No. 6.

Court of Errors and Appeals of New Jersey.

Jan. 27, 1944.

Appeal from Circuit Court, Hudson County.

Action by Edward J. Stappenbeck, as administrator ad prosequendum of Edward J. Stappenbeck, Jr., deceased, against Jagels Fuel Corporation, a corporation of New Jersey, and another for wrongful death. From a judgment for plaintiff, defendants appeal.

Reversed to the end the venire de novo may issue.

Townsend & Doyle, of Jersey City (Mark Townsend, of Jersey City, of counsel), for appellants.

Stephen Mongiello, of Hoboken, for respondent.

COLIE, Justice.

Appellants appeal from a judgment awarding damages for the wrongful death of an infant four years of age. They assert error in the trial court's overruling of a question asked of the defendants' witness, Edward J. Ahearn, and error, amounting to abuse of judicial discretion, in the trial court's refusal to set aside the verdict. Our disposition of the first question renders unnecessary a discussion of the second.

The defendant, Hausold, an employee of the co-defendant, Jagels Fuel Corp., was driving a truck on his employer's business in a southerly direction on Summit Avenue in Jersey City. The plaintiff's decedent was crossing Summit Avenue from east to west on the northerly crosswalk of Charles Street which there forms a rightangle intersection with Summit Avenue. An important fact question involved was whether the plaintiff's decedent was walking or running across Summit Avenue.

Toward the end of the first day of the trial, the plaintiff called to the stand one Edward J. Ahearn who testified that he was standing on the northeast corner of Bowers Street and Summit Avenue, looking toward Charles Street. Bowers Street is one block distant from Charles Street. At this point in Ahearn's examination, the court recessed until the following morning at which time plaintiff's attorney stated that he wished to withdraw the witness and rest his case. Defendants' attorney objected that he was being deprived of the right to cross-examine and the court then directed that the witness be produced. After some delay the witness was located and resumed the stand. Defendants' counsel then proceeded to cross-examine. The witness was asked whether he saw the boy and he said that he did. A belated objection to the question was made and sustained, followed by a motion to strike the answer from the record. From this point the record reads as follows:

‘The Court: It isn't within the direct examination. If you wish to make him your witness you have the right to do that.

‘Mr. Townsend: I will make him my witness, if the Court please.

‘By Mr. Townsend: Q. You saw the boy run across the street, didn't you? A. He didn't run across; I saw him step off the curb.

‘Q. I say you saw him run across the street, didn't you? A. No, sir.

‘Q. You did not? A. No, sir.

‘Q. You read and write, don't you? A. Yes, sir.

‘Mr. Townsend: Mr. Murray, stand up, please. (A person in the courtroom stands up.)

‘Q. Do you recognize that gentleman? A. Yes, sir.

‘Q. He interviewed you on July 15, 1941 concerning what you knew about this accident, didn't he? A. Yes, sir.

‘Q. You told him, didn't you? A. Yes.

‘Q. Did you tell him the truth? A. Yes, sir.

‘Q. And after you told it, what you knew about the accident, he wrote it down, didn't he? A. Yes, sir.

‘Q. He gave it to you, you read it, and then signed your name to it? A. I signed my name to it.

‘The Court: What are you supposed to do here?

‘Mr. Townsend: Neutralize his testimony.

‘The Court: He hasn't shown hostility, yet.

‘By Mr. Townsend: Q. You read that statement, didn't you? A. Well, I glanced over it. I wouldn't say I read it.

‘Q. Is this your signature?

‘Mr. Mongiello: If your Honor please, I wish to interpose an objection at this time because counsel is trying to impeach his own witness.

‘The Court: The objection is sustained, but I shall let him identify the paper.

‘A. Yes, that's right.

‘Q. This is your signature on the second sheet? A. Yes, sir.

‘Q. Is this your signature on the third sheet? A. Yes, sir.

‘Q. Is this your signature on the fourth sheet? A. Yes, sir.

‘Q. Is this your writing? A. My writing? No, sir.

‘Q. Just a minute, sir-- A. (Interrupting) Yes, that's mine.

‘Q. (Reading:) ‘I read these four pages'--

‘Mr. Mongiello: I object to that.

‘The Court: Objection sustained.

‘Mr. Townsend: I ask it be marked for identification. (The document referred to was marked Exhibit D-1 for Identification.)

‘By Mr. Townsend: Q. Don't answer this until counsel has a chance to make an objection and the Court rules. Did you not say at that time, and did you not say in this statement, ‘I looked north on Summit Avenue. I saw,’--

‘The Court: The objection is sustained, and the Court admonishes you now that you haven't established the right to neutralize this man's testimony. He has not manifested any animosity or any partiality.

‘Mr. Townsend: If the Court please, this falls within the case of the State vs. Hall, in the...