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Barbanes v. Brown

Decided: December 3, 1932.

FRED A. BARBANES, PLAINTIFF-APPELLEE,
v.
FREDERICK A. BROWN, DEFENDANT-APPELLANT



On appeal from the District Court of the First Judicial District of the county of Morris.

For the appellant, Maurice J. McKeown.

For the appellee, Barkman & Shauer.

Before Justices Trenchard, Case and Brogan.

Trenchard

The opinion of the court was delivered by

TRENCHARD, J. The plaintiff below sued to recover for damage to his automobile done by the defendant's automobile. The trial judge, sitting without a jury, found for the plaintiff and the defendant appealed from the judgment.

The defendant specified as the determination with respect

to which he was dissatisfied only this: That the trial judge rendered a verdict in behalf of the plaintiff, whereas he should have rendered a verdict of no cause of action.

At the trial it appeared, without dispute, that the defendant parked his automobile on the northerly side of Morris street, in Morristown, at the curb at a point where there was considerable grade; that shortly thereafter, without driver or occupant, it rolled backwards by force of gravity down grade along and across the street and collided with and damaged the automobile of the plaintiff lawfully parked on the southerly side of the street.

Of course, the unexplained presence upon a public highway of a "runaway" automobile, without driver or occupant, running down grade along and across the street and colliding with and damaging another automobile lawfully there, raises a prima facie presumption of negligence upon the part of the owner of the runaway automobile. Sheridan v. Arrow Sanitary Laundry Co., 105 N.J.L. 608.

The sole question presented and argued is whether at the close of the case the evidence adduced was of such a character as to overcome the proof and presumption of defendant's negligence, and to require the court, sitting as a jury, to find for the defendant.

The general rule is that a person who leaves an automobile in a public street unattended is under a duty to exercise such care in doing so as a person of ordinary prudence would exercise in the circumstances; and failure to exercise such care, whereby the machine by force of gravity, or by some other cause reasonably to be anticipated or guarded against, gets under way and inflicts injury, renders such person liable therefor ...


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