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Silverstein v. Schneider

Decided: January 31, 1933.

ABRAHAM SILVERSTEIN, BY HIS NEXT FRIEND, ANNA SILVERSTEIN, PLAINTIFF-RESPONDENT,
v.
HYMAN C. SCHNEIDER AND MANN'S CARRIAGE FACTORY, INCORPORATED, A CORPORATION, DEFENDANTS-APPELLANTS



On appeal from the Essex County Circuit Court.

For the respondent, Schneider & Schneider.

For the appellants, Holmwood & Creighton.

Brogan

The opinion of the court was delivered by

BROGAN, J. The case under consideration was tried in the Essex County Circuit Court and the record discloses the following happenings.

On August 17th, 1930, Abraham Silverstein, plaintiff, stood on the sidewalk at Hawthorne avenue near Hunterdon street, in the city of Newark, New Jersey. Hyman C. Schneider, a defendant, was towing a Dodge automobile truck belonging to the other defendant, Mann's Carriage Factory, Incorporated, and turned from Hunterdon street into Hawthorne avenue. The tow rope broke and the Dodge truck, which was being towed, ran up on the sidewalk, seriously injuring the plaintiff, as a result of which his left leg was amputated.

Now the plaintiff charges that the defendants were negligent and that their negligence was the proximate cause of his injury; that Schneider was driving his automobile in a reckless manner and was towing the automobile truck carelessly, operating by sudden and violent starts and jerks so that the truck, which was being towed, could not properly keep its course and that this manner of operation caused the tow rope to break and precipitated the auto truck onto the sidewalk where the plaintiff stood. There are other allegations of negligence against the defendant Schneider in that the rope used for the towing was old and worn; that he didn't inspect it; that it wasn't of sufficient length or strength to properly tow the automobile truck.

Prior to the happening, it appears that the truck of the Mann's carriage factory, for some reason or other, was unable to proceed to its garage on its own power and the driver, one Middleton, sent for one Biow, who was the secretary of the Mann's carriage factory. Biow, on arriving at the scene, was unable to start up the truck and called upon Schneider, a

friend, who lived nearby, to tow the truck to the company's garage. A rope was gotten from the Dodge truck and fastened therefrom by Biow to the rear of the Schneider car and the trip was started. Biow rode with Schneider in his car and the driver of the Mann's carriage factory sat in the Dodge truck to manage its operation.

Plaintiff recovered a judgment against both defendants in the sum of fifty thousand ($50,000) dollars and the defendant Schneider appeals.

The first ground of appeal is that the court was without jurisdiction to proceed with the trial on the ground that the plaintiff was mentally incompetent and insane.

Plaintiff sustained the injury on August 17th, 1930. He was in the hospital until December 28th, 1930, and his physician saw him thereafter at intervals until April 24th, 1931. Suit was started by the plaintiff in his own proper person on February 20th, 1931. At or about the time of his discharge from the hospital the plaintiff began to grow morbid, brooding over his injuries, the loss of his leg, and subsequently he was removed to the City Hospital because of his ...


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