Sutton v. Bell

• Decision Date: 20 June 1910
• Citation: 79 N.J.L. 507,77 A. 42
• Parties: SUTTON v. BELL.
• Court: New Jersey Supreme Court

77 A. 42

79 N.J.L. 507

SUTTON

v. BELL.

Court of Errors and Appeals of New Jersey.

June 20, 1910.

(Syllabus by the Court.)

Error to Supreme Court.

Action by Francis M. Sutton against Charles W. Bell. Judgment for plaintiff, and defendant brings error. Reversed, and new trial granted.

George W. Betts, Jr., for the plaintiff in error.

Durand, Ivins & Carton, for the defendant in error.

GARRISON, J. This was an action for damages for injury done to the plaintiff's automobile by an automobile driven by the defendant. The plaintiff's car was running north along South street in the town of Freehold, followed by the defendant's car, which was some 50 feet behind it. The speed of the two cars was about the same, 12 or 15 miles an hour. On reaching McLean street, which runs out of the west side of South street at an angle not quite as sharp as a right angle, the plaintiff's car, which had been running on the right-hand side of South street, was turned to the left to enter McLean street, and while in the act of leaving South street was struck by the defendant's car, which had been running on the lefthand side of South street and was still continuing its course. Neither the plaintiff nor his chauffeur looked back before turning into McLean street, and there was no proof that they knew that a car was following them along South street. No indication of a purpose to turn into McLean street was given by the occupants of the plaintiff's car. The defendant, who had given no signal to indicate his proximity to the plaintiff's car, was not attempting to pass it on South street, but, when surprised by its turning into McLean street, applied his emergency brake and unsuccessfully attempted to avoid running into the plaintiff's car as it crossed the left side of South street in front of him.

There was testimony as to the customary warnings and proper management of cars under such circumstances.

Verdict and judgment having been rendered for the plaintiff, the defendant, now the plaintiff in error, contends that the case should have been taken from the jury, either upon the ground that the defendant was not negligent or upon the contributory negligence of the plaintiff. The trial court rightly refused these motions. The existence of negligence, whether of the plaintiff or of the defendant, depended upon the conclusion to be reached from a variety of circumstances, considered, not as isolated occurrences, but altogether, and in view of their relation to and reaction upon each other. To draw a conclusiou as to the conduct of the parties under circumstances thus connected is of the very essence of the jury function. In proportion as such circumstances multiply and intercalate, it becomes more and more a matter of deciding between conflicting inferences, and less and less a matter of declaring that one inference alone is conclusively compelled by the testimony. The latter, viz., to decide that there exists no recognizable controversy upon the testimony, is the function of the court; but to recognize the existence of such a controversy and to proceed to decide it is to usurp the function of the jury, which, in the present ease, the court very properly refused to do.

Finding that there was no error in the denial of the defendant's motions, there remains for consideration the correctness of the court's charge touching the force to be given by the jury to the fact that the defendant was insured against accidents or against loss.

This testimony got into the case in several ways. While under cross-examination, the plaintiff, against the objection of defendant's counsel, was permitted to testify that he asked the defendant if he was insured, and that the defendant answered that he was, and thought "they could fix this up together somehow." Later, and against a similar objection, a letter was put in evidence which stated that a letter of the plaintiff had been referred by the defendant to the Columbia Insurance Company of New York for its action thereon.

The defendant himself, when called as a witness in his own behalf, testified that he had told plaintiff that he was insured.

Touching this testimony the court instructed the jury as follows:

"The only bearing the fact of insurance has upon ...