On appeal from the Supreme Court.
For the appellant, Frank G. Turner.
For the respondent, Kent & Kent (Samuel Kent, of counsel).
The opinion of the court was delivered by
TRENCHARD, J. This action was brought to recover damages under the Death act for the death of Henry Stern. The case was tried in the Hudson Circuit before Judge Oliphant, to whom it had been referred, and the jury returned a verdict for the plaintiff. This is the defendant's appeal.
The main contention of the defendant is that the judgment entered upon the verdict should be reversed because of the refusal of the trial court to grant a nonsuit and to direct a verdict for the defendant upon the grounds -- (1) that there was no proof of defendant's negligence; (2) that the decedent was guilty of contributory negligence, and (3) that the injuries received by the decedent in the accident did not cause his death.
We think that the contention is ill-founded.
Considering the evidence in the light most favorable to the plaintiff, as of course we must on such motions, it was open to the jury to find the following matters of fact:
On October 29th, 1929, in the early afternoon, on a clear day, the decedent, Henry Stern, was returning from business via the West Side Bus Line on West Side avenue in Jersey City. In that avenue two sets of trolley tracks are laid and it was intersected by Grant avenue. The bus in which decedent was a passenger stopped at the crosswalk at Grant avenue at the curb, leaving four feet of clear space between the bus and the nearest trolley rail. Decedent alighted from the bus, followed by another passenger, and the decedent walked along the crosswalk in front of the bus to get a clear view of the street which he desired to cross. At the point where he cleared the bus he looked "both ways" on West Side avenue "turning his head." There was no traffic signal or
traffic officer at this crossing and it was a business and residential district. There were no vehicles within a block except the bus from which he had alighted and the defendant's truck which had been following the bus down the street. Having made his observation decedent proceeded slowly to cross the street on the crosswalk, and when he had reached the trolley tracks near the middle of the street he was struck by the overhang of defendant's truck which had swung around the standing bus, and came on at a speed of thirty-five miles an hour, giving no warning or signal. Decedent's body spun around and dropped on a manhole cover between the north and south-bound trolley tracks. Although the brakes were applied immediately the truck proceeded sixty feet before it stopped. Decedent was rendered unconscious, and was taken to the hospital. Prior to this accident he had enjoyed good health. His injuries consisted of a fractured left clavicle, fractured ribs, possible fracture of the skull and internal injuries. He lingered at the hospital for seven days completely disabled and unable to make any statement and then died. He was fifty years of age at the time, and left a widow and two boys.
In this posture of the proof the jury was justified in finding that the driver of defendant's truck was negligent. The law imposed upon him the duty of using due care to observe whether or not people were crossing at this crosswalk at the street intersection, and to use due care to have his truck under such control as not to jeopardize the safety of pedestrians who were using due care in crossing after having alighted from a bus then unloading at such crosswalk. The Supreme Court so held in Huenegarth v. Krones, 1 N.J. Mis. R. 113, and in Newham v. Nazzara, 107 N.J.L. 208. And this court also so held in Tischler v. Steinholtz, 99 Id. 149.
Also, considering all of the evidence, we think that reasonable men might well have differed upon the question of contributory negligence and therefore that ...