Steber v. Malanka

• Decision Date: 13 February 1936
• Docket Number: Nos. 11, 12.,s. 11, 12.
• Citation: 182 A. 890
• Parties: STEBER v. MALANKA et al. HAYES et al. v. SAME.
• Court: New Jersey Supreme Court

182 A. 890

STEBER

v. MALANKA et al.

HAYES et al.

v. SAME.

Nos. 11, 12.

Supreme Court of New Jersey.

Feb. 13, 1936.

Appeal from Court of Common Pleas, Hudson County.

Actions by Andrew Steber and by Katherine Hayes, by her next friend, Edward Hayes, and others against Carmine F. Malanka, Gerald Malanka, and another. From judgments in favor of the plaintiffs as against the named defendants, the named defendants appeal.

Affirmed.

Argued October term, 1935, before BROGAN, C. J., and LLOYD, and DONGES, JJ.

Bauer & Ranker, of Union City (Eznick Bogosian, of Union City, of counsel), for appellants.

Charles A. Rooney, of Jersey City, and Feinberg & Feinberg, of Bayonne, for respondents.

LLOYD, Justice.

These cases grew out of a collision between cars on Tonnele avenue in North Bergen, Hudson county. There were judgments in favor of the several plaintiffs as against two of the defendants, Carmine F. Malanka and Gerald Malanka, and these defendants appeal.

The grounds of appeal are that the court should have controlled the case by a nonsuit or direction of a verdict for the defendants because of the absence of proof of negligence in the defendants, and because of the contributory negligence of the plaintiffs; also that it should have charged certain requests which had been submitted and refused.

The defendant Carmine Malanka was the owner of a truck which at the time of the accident was being operated by her servant Gerald Malanka. In the early morning of January 11, 1933, according to the plaintiffs' testimony, Gerald had stopped the truck on the right-hand side of the highway approximately three feet from the center of the road without exhibiting a rear red light as required by section 7, paragraph 3 of chapter 171, P.L. 1931, p. 352 (N.J.St. Annual 1931, § 135— 56(3). While so stopped, the plaintiff's car ran into it, causing the damage for which the respective plaintiffs were awarded judgments.

This we think constituted proof from which the defendants' negligence could be inferred, and for which both were liable, if it existed. Seibert v. A. Goldstein Co., 99 N.J.Law, 200, 122 A. 821.

Contributory negligence is rested on the ground that as a matter of law the court should have held that proceeding in the face of the lights of another car by which he was momentarily blinded and at the speed appearing in the proofs, the driver of the plaintiff's car was guilty of negligence, without which the accident would not have occurred.

Whether the manner...