On appeal from the Supreme Court, Gloucester Circuit.
For the plaintiff-respondent, Albert S. Woodruff.
For the defendant-appellant, Walter S. Keown.
The opinion of the court was delivered by
BROGAN, J. This is an appeal by the defendant from a judgment in the Supreme Court Circuit of Gloucester county in a death action in the sum of $10,000. The deceased drove an automobile truck loaded with farm produce on to a ferryboat that ran between Camden, New Jersey, and Philadelphia, Pennsylvania, on the night of October 23d, 1930. His was the last vehicle on the rear of the boat on the left side of the driveway. As is the custom, chocks were placed in back of the rear wheels to prevent the auto truck from rolling. The defendant's auto truck was directly in front of that of the deceased, a Ford truck with a low body extending back from its rear wheels.
When the ferryboat docked at Philadelphia, the deceased was found to have been injured in some manner. He was taken at once to the hospital where, two days later, he died. He was forty years old, had enjoyed good health and left surviving him a wife and two children. The medical testimony disclosed that the deceased had been severely injured
externally and internally. At the time he entered the hospital he had bruises on both his chest and back as well as severe abdominal pain. The medical testimony disclosed that he died of a ruptured organ in the abdominal region; that the deceased received these injuries by the application of external force from the back and front, the more severe pressure being from the back. A post-mortem examination disclosed bruises in the external lining of the heart through the diaphragm and large lacerations of the liver, which testimony was corroborated. There is, however, no substantial dispute regarding the injuries suffered by the deceased, but they become of importance because of the fact that no one saw the accident which caused the death.
Several disinterested witnesses testified that most of the passengers and vehicles had disembarked when the injured man was discovered. The first intimation they had of an accident was when they heard the deceased scream and, upon investigation, found him apparently in pain, holding his stomach. He was standing in front of his own car and, as the testimony shows, leaning against his radiator, whence he staggered around to the running board of his car, holding his stomach and his back. The auto truck of the decedent had not moved. There was no jar from the boat; there were chocks under the wheels; the gears disengaged; the engine not started; the emergency brake on. These conditions obtaining, it was a physical impossibility for the truck of the decedent to have come forward and caused the accident.
The defendant's driver admitted that the back of his truck would be in line with the back of the decedent were he bending over to crank his car and it was in front of his own car and in back of defendant's car that decedent was discovered.
The appellant argues for reversal on three grounds. First, the trial court should have granted the motion for nonsuit at the close of the plaintiff's case. Second, that a direction of the verdict should have been granted at the conclusion of the whole case. Third, that the trial court erred in charging the jury.
While it is true that there was no eye-witness to the accident, yet we think that the facts and circumstances surrounding the case were sufficiently proven to justify the trial court in denying a motion for nonsuit and likewise in denying a motion for a directed verdict in favor of the defendant.
On motion for a nonsuit all of the facts proven in the plaintiff's case are, for the purpose of the argument, taken as admitted and every inference of fact which legitimately can be drawn ...