Wilson v. Brauer

• Decision Date: 19 June 1922
• Docket Number: No. 52.,52.
• Parties: WILSON v. BRAUER.
• Court: New Jersey Supreme Court

117 A. 699

WILSON

v. BRAUER.

No. 52.

Court of Errors and Appeals of New Jersey.

June 19, 1922.

(Syllabus by the Court.)

Appeal from Supreme Court.

Action by William C. Wilson against Selig Brauer. Judgment for plaintiff, and defendant appeals. Affirmed.

Lazarus & Brenner, of Bayonne (Nathan L. Goodman, of Bayonne, on the brief), for appellant.

Alex. Simpson, of Jersey City, for respondent.

TRENCHARD, J. William C. Wilson, the plaintiff below, while walking on the sidewalk of Columbia avenue, Jersey City, was struck by an automobile owned by the defendant and was injured. He brought this action in the Hudson county circuit court to recover damages tor such injuries. He obtained a verdict, and from the judgment entered thereon the defendant appealed to the Supreme Court, and the judgment was there affirmed.

We are of the opinion that the judgment should not be disturbed.

There were only two grounds of appeal: (1) Refusal to nonsuit; and (2) refusal to direct a verdict for the defendant.

The refusal to nonsuit for failure of proofs will not justify a reversal where, as here, the defect was supplied by evidence thereafter taken during the progress of the cause. Seller v. Vanderbeek & Sons, 88 N. J. Law, 636, 96 Atl. 1009.

When the motion to direct a verdict was made the evidence justified the jury in finding, if they saw fit, the following matters of fact:

The defendant, Brauer, resided on Bleecker street in Jersey City. After having returned home in his automobile, he authorized his chauffeur, Kennedy, to use his car for the purpose of teaching one Beck, a friend of the chauffeur, how to drive it. This authorization was given just as the chauffeur was about to take the car from the defendant's home to the garage three or four blocks away on the "boulevard." Beck, who had no driver's permit, took the steering wheel, and the chauffeur sat beside him. During the course of his lesson, on the way to the garage, Beck ran the car, because of his lack at knowledge and skill, up on the sidewalk and injured the plaintiff. Under that evidence, as we shall presently show, the liability of (he defendant was a jury question.

The motion for a direction was grounded upon the contention that the evidence showed conclusively that Beck, the driver, was not the agent or servant of the defendant, and that the chauffeur was acting at the time outside of the scope of his employment. We deem it unnecessary to determine whether or not that contention is well founded in fact, because, in any event, it is inconclusive for the purpose of the disposition of the motion. The motion, and the argument upon which it was based, overlooks or ignores the precise character and extent of the evidence, and its true legal effect. Of course it is quite true, as a general rule, that the owner of an automobile is not liable for an injury resulting from its operation by another, unless the person operating it is one for whose act the owner is responsible under the...