Turner v. Hall

• Decision Date: 19 November 1906
• Citation: 74 N.J.L. 214,64 A. 1060
• Parties: TURNER v. HALL.
• Court: New Jersey Supreme Court

64 A. 1060

74 N.J.L. 214

TURNER

v. HALL.

Supreme Court of New Jersey.

Nov. 19, 1906.

(Syllabus by the Court.)

Appeal from District Court of Jersey City.

Action by Charles Turner, by his next friend, against Perry E. Hall. Judgment for plaintiff, and defendant appeals. Affirmed.

Argued June term, 1906, before HENDRICKSON, PITNEY, and TRENCHARD, JJ.

Riker & Riker, for appellant. Hamill & Egan, for appellee.

TRENCHARD, J. This is an appeal from a judgment entered in the First district court of Jersey City. The action was brought by a father, as next friend for his infant son, to recover for personal injuries claimed to have been occasioned to the infant by the negligent use of an automobile, owned and operated by the defendant. The state of the case, as settled by the trial judge, shows that the injured boy, who was about 12 years of age, was playing on the roadway of the street near his home on Thirteenth street, Jersey City, December 8, 1905, between 3 and 4 o'clock in the afternoon, throwing up a ball and running to catch it. The defendant's automobile, driven by himself, was coming along the street at full speed in the middle of the street, giving no warning by horn, bell, whistle, or other sound, and when it approached the boy, "twitched" and hit him. He was knocked down and injured. At the close of the plaintiff's case, the defendant moved for a nonsuit on the ground of the boy's contributory negligence, which motion was denied, and to this ruling the defendant prayed and was granted an exception. After some evidence on behalf of the defendant, the case was submitted to the jury in a charge to which no objections were made, and the jury rendered a verdict in favor of the plaintiff, assessing the damages at $100, for which amount, with costs, judgment was thereupon entered.

The exception to the ruling of the trial judge on the motion for a nonsuit presents the only question raised for consideration. I think the motion was properly denied. Upon a motion to nonsuit on the ground of contributory negligence, where the alleged negligence must be deduced from facts and circumstances in evidence, the question is usual ly one for the jury, and the motion will be refused unless it is established by the evidence, beyond fair debate, that the plaintiff was negligent, and that the negligence directly contributed to the injury complained of. Mahnken v. Freeholders of Monmouth, 62 N. J. Law, 404, 41 Atl. 921. In Kathmeyer v. Mehl (N. J. Sup.) GO Atl. 40,...