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Hammond v. Wacker

Decided: May 18, 1931.

JOHN HAMMOND, BY EVELYN HAMMOND, HIS NEXT FRIEND, AND EVELYN HAMMOND, APPELLANTS,
v.
JOSEPH WACKER, RESPONDENT



On appeal from the Supreme Court.

For the appellants, Quinn, Parsons & Doremus (John J. Quinn and Theodore D. Parsons, of counsel).

For the respondent, McCarter & English (George W. C. McCarter, of counsel).

Trenchard

The opinion of the court was delivered by

TRENCHARD, J. This action was brought by an infant plaintiff (hereinafter referred to as the plaintiff), by his mother, as next friend, and by his mother individually, to recover damages for personal injuries suffered by the plaintiff, and for necessary expenses incurred by his mother, who supported him, alleged to have been caused by the negligence of the defendant, the driver and owner of a school bus.

At the first trial verdicts were rendered for the plaintiffs; but they were set aside by the Supreme Court on rule to show cause.

At the second trial, upon substantially the same evidence, the trial judge directed a verdict in favor of the defendant; and this is the plaintiffs' appeal from the consequent judgment.

Of course, in reviewing the legal propriety of the direction of a verdict for the defendant, the court must consider the evidence in the light most favorable to the plaintiffs.

So considered we have this situation: The defendant operated an auto bus under a contract with the board of education of a municipality which required him to carry pupils to and from a high school. The plaintiff was one of the pupils so carried for a period of three years. He was twelve years old. The accident happened at the corner of Port Monmouth road and Ocean avenue. The auto bus was then on its way to the high school, and one of its regular stops, as plaintiff well knew, was on the far corner of the intersecting street. At that corner sixteen boys and girls, including the plaintiff had collected, waiting the arrival of the bus. Plaintiff saw it approaching and, instead of waiting until it came to a standstill at its regular stopping place, he went across the intersecting street. Without the defendant's knowing it, or having reason to know it, the plaintiff "ran by the side of the bus and grabbed hold of the handles and jumped on" the step below the open door at the side of the bus as it was rolling slowly to its regular stopping place. At that instant the bus swung towards its usual stopping place at the curb, and lurched as it went off the concrete to the gravel shoulder of the road, and plaintiff lost his grip and fell and was injured.

The defendant and his witnesses stoutly denied that the door was open and denied that there was any lurch, but, of course, for the purpose of this discussion we accept the plaintiffs' version.

We think that there was no evidence of negligence upon the part of the defendant.

The defendant did nothing that a reasonably prudent man in his position would not have done, and he left nothing undone that a reasonably ...


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