Work v. Philadelphia Supply Co.

• Decision Date: 15 November 1920
• Citation: 112 A. 185
• Parties: WORK v. PHILADELPHIA SUPPLY CO.
• Court: New Jersey Supreme Court

112 A. 185

WORK

v. PHILADELPHIA SUPPLY CO.

Court of Errors and Appeals of New Jersey.

Nov. 15, 1920.

(Syllabus by the Court.)

Appeal from Supreme Court

Action by Lucy E. Work against the Philadelphia Supply Company. Judgment for plaintiff, and defendant appeals. Affirmed.

Norman Grey, of Camden, for appellant.

Ott & Carr, of Camden, for respondent.

BLACK, J. This is the defendant's appeal. The plaintiff recovered a verdict for damages, in an action for personal injuries. The defendant attacks the judgment, and argues under six heads in the brief that the judgment should be reversed, alleging trial errors.

We think there is no legal merit in any of them. The judgment should be affirmed. The legal questions involved do not call for any extended discussion. The first two errors alleged are the trial court's refusal to nonsuit the plaintiff, and direct a verdict in favor of the defendant: First, on the ground that the plaintiff had not proved any negligence on the part of the defendant; second, because the plaintiff was guilty of contributory negligence. A short statement of some of the vital testimony in this case, however, demonstrates that the rulings of the trial court, on these points, were not error.

The record shows the plaintiff was walking in a northerly direction on the west side of Shell road, Carney's Point, just below Pennsgrove, N. J., on that part of the road principally used by pedestrains. The automobile of the defendant was likewise proceeding in a northerly direction, on the easterly side of Shell road, being the side opposite to that on which the plaintiff was walking.

The automobile suddenly turned to the left and slid across the road, turned over in back of the plaintiff, and fell upon her, causing the injuries complained of. The plaintiff testified she was on a "side path," a "path for pedestrians," "it is a path, a dirt path." Manifestly, on this testimony, the trial court could not say as a matter of law that the plaintiff was guilty of contributory negligence. There can be no doubt that at least a jury question was presented as to the contributory negligence of the plaintiff (Brewster v. New York, etc., R. R, Co., 80 N. J. Law, 447, 78 Atl. 160; Mahnken v. Freeholders of Monmouth County, 62 N. J. Law, 404, 41 Atl. 921); contributory negligence was a jury question. A motion to nonsuit will be refused on that ground, unless it is established by the evidence beyond fair debate.

So, on the point of the defendant's negligence, all the trial court had to decide was whether negligence of the defendant may be reasonably inferred. It was open to the jury then to say whether from the facts in proof negligence ought to be inferred.

Metropolitan Railway Co. v. Jackson L. R., 3 App. Cas. 193, Newark Passenger Ry. Co. v. Block, 55 N. J. Law, 607, 27 Atl. 1067, 22 L. R. A. 374; a motion for a nonsuit admits the truth of the plaintiffs evidence and of every inference of fact which can lie legitimately drawn therefrom. Jones v. Public Service Ry. Co., 86 N. J. Law, 648, 92 Atl. 397. As the proofs stood at the close of the plaintiff's case, the defendant's negligence was a jury question. The application of these principles is illustrated in such cases as Newark Electric, etc., Co. v. Ruddy, 62 N. J. Law, 505, 41 Atl. 712, 57 L. R. A. 624; Najarian v. Jersey City, etc., R. R. Co., 77 N. J. Law, 704, 73 Atl. 527, 23 L. R. A. (N. S.) 751; Napurana v. Young, 74 N. J. Law, 627, 65 Atl. 1052.

On the defense, the driver of the automobile testified:

"My wheels slid off, slid off the asphalt onto the stone, and they pulled...