On appeal from the Supreme Court.
For the appellant, Schneider & Schneider (William P. Braun, of counsel).
For the respondents, John L. Ridley.
The opinion of the court was delivered by
McGLENNON, J. This suit arises out of an automobile accident, and plaintiff Lester M. German, sued for personal injuries sustained thereby, while driving a Ford sedan owned by his father, Jacob German, the other plaintiff who sued for damages to the vehicle. The case was tried at the Hudson Circuit, before a jury, resulting in a verdict and judgment in favor of the son for $1,200 and in favor of the father for $250. Defendant, Harris, appeals from the judgment in favor of the plaintiff, Lester M. German, and assigns error of the trial court in refusing him a nonsuit or direction of a verdict, and in refusing to charge as requested. A summary of the evidence is therefore necessary to deal with these matters. The defendant offered no proofs, except as to the extent of the injuries, and the damage to the car.
Plaintiffs' proofs showed that the accident occurred about three A.M. on Sunday morning, December 18th, 1927, while the Ford sedan, he was driving, was proceeding in a northerly direction along Baldwin avenue, Jersey City. He slowed down and blew the horn as he approached Hoboken avenue, which is the exit for cars proceeding westerly from the Holland Tunnel. As the Ford advanced slowly into the intersection, the driver observed a car driven by one Fread coming westerly on Hoboken avenue and about three hundred feet distant with bright lights, but saw no other car approaching from the right or east. When the Ford was about one-third over the crossing, it was suddenly struck by the defendant's Cadillac, near the side door, with such force as to turn the Ford over and force it upon the sidewalk, and up against a building at the northwest corner of the crossing. Defendant's car came to rest, upon the sidewalk, farther up Hoboken avenue, some seventy-five or eighty feet west of the corner. There were no traffic lights.
Fread testified that the Cadillac had followed him through the tunnel, and then passed him two or three times, alternately slowing down and speeding up again. That he saw the Ford car nosing out of Baldwin avenue, when he was about three hundred feet to the east, and the Cadillac was then some fifty feet in his rear, and its lights were dim. That when Fread was about fifty feet from the crossing, the Cadillac again passed him, "at a terrific rate of speed," as he veered to the right, and that it kept on and struck the Ford about midships. The Ford was turned over several times until it came to rest at the northwest corner, and that he saw a body fly through the air for some distance, and the Cadillac came to a stop, on the sidewalk, about one hundred feet further west.
Officer Miller stated that he heard the crash a block and a half away, and upon coming up, saw the two cars in the positions described.
The sole contention of appellant in support of his motions for nonsuit and direction of verdict, is that the Ford driver was guilty of contributory negligence, as a matter of law,
basing his argument upon the fact that the driver admits he kept a constant lookout to the east, and must have seen, or should have seen the Cadillac approaching, and should have avoided the accident, if he acted as a prudent man should act under the circumstances. He cites two cases.
The first, Carambas v. Bergida, 103 N.J.L. 313, was a Supreme Court decision, affirming an instruction of the trial court to a jury, upon appeal by the plaintiff, from a judgment for defendant. The plaintiff there admitted, he heard a truck approaching from his right, but could not see it, yet proceeded further and stopped, and remained in that position until he was struck, although there was sufficient light to see. Nevertheless the case was submitted to the jury to determine whether plaintiff was guilty of contributory negligence, under instructions that "one who sees, or could have seen, if he had looked, and has the faculties to understand the dangers to' which he is exposed, is ...