Wisniewski v. Weinstock.

• Decision Date: 12 April 1943
• Docket Number: No. 7.,7.
• Parties: WISNIEWSKI v. WEINSTOCK.
• Court: New Jersey Supreme Court

130 N.J.L. 58

31 A.2d 401

WISNIEWSKI

v.WEINSTOCK.

No. 7.

Supreme Court of New Jersey.

April 12, 1943.

Action by Agnes Wisniewski, administratrix ad prosequendum of the estate of John S. Wisniewski, deceased, against Louis Weinstock to recover for the deceased's death when struck by defendant's automobile. From an adverse judgment, the plaintiff appeals.

Judgment affirmed.

Appeal from Court of Common Pleas, Middlesex County.

January term, 1943, before BROGAN, C. J., and PARKER and PORTER, JJ.

Francis N. Reps, of Perth Amboy, for plaintiff-appellant.

Philip Blacher, of New Brunswick, for defendant-respondent.

BROGAN, Chief Justice.

The plaintiff as administratrix ad prosequendum suffered judgment of nonsuit in the prosecution of an action against the defendant for the death of her husband who died as the result of injuries received when he was struck by the defendant's motor car. The accident occurred March 28, 1940, at 7:30 in the evening on a state highway known as Route 35 in South Amboy, at the intersection of Oak Street and Ridgeway Avenue.

The grounds of appeal state that the nonsuit was error in that there was sufficient proof to take the case to the jury and further, that the court erred in declining to receive the opinion testimony of plaintiff's witness, Paczkowski. This witness was asked whether he could judge the speed at which the defendant's car was moving at the time of the accident ‘from an examination of the length of the skid mark.’ The agrument for reversal based on this ground of appeal will be examined first. The questions in exhibition of the witness' qualifications brought out that he was a truck chauffeur and had been such for a period of fifteen years. This witness had testified that at the time of the accident he was in a nearby tavern and certain sounds from the highway engaged his attention. He described his sensation by declaring that he heard ‘brakes squeal and the sound of a cork being blowed out of a bottle.’ In testifying the witness referred to a diagram which was admitted in evidence but which has not been reproduced in the state of case. On it he made markings showing where the body of Mr. Wisniewski lay and where the defendant's car stood after the collision. The witness also testified that he examined the road for ‘skid’ marks, found them, and that they ‘followed the car’ almost to the point where it came to a stop. He was then asked the question whether from those marks he could judge the speed at which the car was running at the time of the happening. The court, on its own motion, overruled the question, saying: ‘It is too uncertain. I sustain the objection’, although no objection had been voiced for the defendant.

The appellant contends the court erred in barring the testimony. It is conceded by the appellant that the question of whether a witness is qualified to testify as an expert is a preliminary court question (Schwartz Bros., etc., v. International Brotherhood, etc., 126 N.J.L. 379, 19 A.2d 690) but it is argued that in these circumstances the court's action was an abuse of discretion on the ground that the witness, experienced as a truck chauffeur, was qualified to express an opinion and that such opinion was competent. We are of the view that a showing that the witness had been a truck chauffeur for a period of...