Wilkinson v. Walsh

• Decision Date: 17 May 1935
• Docket Number: No. 79.,79.
• Citation: 178 A. 721
• Parties: WILKINSON v. WALSH.
• Court: New Jersey Supreme Court

178 A. 721

WILKINSON

v. WALSH.

No. 79.

Court of Errors and Appeals of New Jersey.

May 17, 1935.

Appeal from Circuit Court, Essex County.

Action by Hartus R. Wilkinson against Joseph P. Walsh. Judgment for defendant, and plaintiff appeals.

Reversed, and venire de novo directed to be issued.

Harvey G. Stevenson, of Newark (Samuel Weitzman, of Newark, of counsel), for appellant.

William J. McCormack, of Orange, for respondent.

WELLS, Judge.

This is an appeal by the plaintiff from a Judgment of the Essex county circuit court entered upon a verdict of a jury directed by the court in favor of the defendant.

The suit was brought to recover for damages occasioned to plaintiff's automobile in collision with an automobile owned and operated by the defendant.

The sole ground of appeal is that the trial court should have submitted the case to the jury.

Of course, on this appeal, we are not concerned with the credibility of witnesses nor with the weight of the evidence. Davis et al. v. Public Service Co-ordinated Transport, 113 N. J. Law, 427, 174 A. 540.

"Motions for nonsuit and to direct a verdict for the defendant, for the purpose of the motions, in effect admit the truth of the evidence, and of every inference of fact that can be legitimately drawn therefrom, which is favorable to the plaintiff, but deny its sufficiency in law; and where such evidence or inferences of fact will support a verdict for the plaintiff, such motions must be denied." Fine & Jackson Trucking Corporation v. Lehigh Valley R. R. Co., 110 N. J. Law, 385, 166 A. 184, 185.

In the instant case we believe that the conflicting evidence presented a case for the jury.

There was testimony to the effect that the plaintiff was driving in the daytime in his automobile with his wife and a friend, in an easterly direction toward New York on the southerly side of the Lincoln Highway crossing the Hackensack River Bridge in Kearney. It was raining and the roadway was wet. Plaintiff's automobile was traveling on the right-hand side of the road, approximately 4 or 5 feet from the girders which protect the sidewalks, at about 20 to 25 miles per hour.

There was room on the bridge for four cars abreast As plaintiff was 40 to 50 feet on the bridge he saw two cars coming in the opposite direction on their right or northerly side of the bridge, one following directly behind the other.

When the cars were about 25 to 30 feet away plaintiff first took particular notice of them. It was then that the second car, owned and operated by the defendant, suddenly pulled out to pass the first car, and in doing so the right rear of defendant's car struck the left rear of the first car, and then defendant's car swerved or skidded over to the left or southerly side of the roadway, striking and damaging plaintiffs car and causing it to swing from the right side of the roadway in which it was traveling, in a half circle across the roadway into the truck which had been proceeding on its right side of the road behind the defendant's car in the direction defendant was traveling, and was at a standstill when it was hit.

The speed of defendant's car was estimated by plaintiff at 25 or 30 miles an hour, and by another witness as "coming very...