On appeals from the Hudson County Circuit Court.
For Martin Ceslak, Brenner & Kresch (Alfred Brenner, of counsel).
For Matthew Krause and Roman Krause, McDermott, Enright & Carpenter (James D. Carpenter, Jr., of counsel).
The opinion of the court was delivered by
DALY, J. This case was tried before Judge Brown and a jury in the Hudson County Circuit Court. It arose from an automobile accident wherein Martin Ceslak, the plaintiff, sustained serious injuries. He claimed that he was run down by an automobile driven by the defendant Matthew Krause, and which automobile admittedly was owned by the defendant Roman Krause, the father of Matthew Krause. At the conclusion of the testimony, the trial judge directed a verdict for Roman Krause, upon the ground there was no proof of such relationship between the defendant Matthew Krause and the defendant Roman Krause, the owner of the car, that could cast any responsibility upon the owner for the operation of the car at the time of the alleged accident. As to Matthew Krause, the jury returned a verdict for the plaintiff against him for $15,000.
From the verdict in favor of Martin Ceslak against Matthew Krause, the defendant appeals on the grounds that the trial court refused (1) to grant defendant's motion for a nonsuit; (2) to grant the defendant's motion for the direction of a verdict; and the main reason he urges for his appeal is there was not sufficient proof before the jury to justify them in finding that the automobile driven by him on the night of the accident was the automobile which came into contact with the body of the plaintiff.
The plaintiff appeals upon the ground that the trial court erroneously granted the motion for a direction of a verdict made by the defendant Roman Krause.
Shortly before midnight of Sunday, June 17th, 1928, or shortly after the midnight, Martin Ceslak, the plaintiff, was walking southerly along the westerly sidewalk of Avenue E, Bayonne, and was crossing Standard Place, which enters Avenue E on the westerly side thereof. Avenue E, at this point, is about sixty feet in width and Standard Place about twenty-five feet in width. Standard Place, though a public
way, is a blind alley, beginning on the westerly side of Avenue E and running westerly about two hundred and fifty feet where it abruptly ends at a fence. The curb on Avenue E generally is about four inches high but in front of the entrance to this alley it is not over two inches in height, and there it is in a broken condition. The paved sidewalk of Avenue E continues at its same general level crossing Standard Place.
Ceslak testified that when he reached Standard Place he looked to the right and to the left, saw no automobile or lights, heard no horn, and had proceeded about half way across Standard Place, when he was knocked down and run over by an automobile which he was unable to describe because, as he says, after the collision his eyes were so covered with blood he was unable to make effective observation, and almost immediately after the accident lapsed into unconsciousness. There were no eye-witnesses to the occurrence.
Mrs. Joseph Rudzinski conducted a place of business at the corner of Avenue E and Standard Place. While in her store about this time she heard a moaning sound, and going out to inquire, she saw the body of Ceslak on the roadway of Standard Place, about six or seven feet west of the Avenue E sidewalk. When asked who was standing near him at that time, she replied: "There was three men coming from work," whom she did not know, and she further testified that after she came out of her store and saw the body of Cesalk upon the ground, she saw the defendant Matthew Krause coming from the direction of his garage in the alley, and that he, Krause, was then about thirty-four feet away. This distance she indicated by indicating from the witness chair to a point in the court room which admittedly was thirty-four feet.
Joseph Marianski, who was in the store of Mrs. Rudzinski, was called out by her and saw a man lying in the middle of Standard Place about seven or eight feet from the ...