On appeal from the Essex County Circuit Court.
For the defendant-respondent, Henry H. Fryling (Elmer W. Romine, of counsel).
For the plaintiffs-appellants, John V. Laddey (Benjamin Gordon, of counsel).
The opinion of the court was delivered by
KAYS, J. This is an appeal from a judgment entered in the Essex County Circuit Court. The case was tried before Judge Flannagan and a jury.
The action was brought by William Neipert, George Wode and Joseph Bachmann, Jr., against the Yellow Cab, Incorporated, and John Le Page, the driver of the taxicab, to recover compensation for injuries sustained by them while they were riding in a taxicab of the defendant company. It appears from the evidence that on Sunday morning, January 26th, 1930, about two A.M., the three plaintiffs summoned a taxicab of the defendant company on Washington street, in the city of Newark, and directed Le Page, who was the driver of the taxicab, to take them to a place on the corner
of Washington street where beer and drinks were served. The plaintiffs directed the driver of the taxicab to wait for them. There was testimony that the plaintiffs asked the taxicab driver to come in the place where they stopped and which he finally agreed to do. While at this place the plaintiffs treated the taxicab driver to a number of drinks and they remained there drinking for about two hours. The taxicab driver testified that he was treated to beer by the plaintiffs. Thereafter the plaintiffs left this place in Newark and directed the driver of the taxicab to take them to Elizabeth. It also appears from the evidence there was a fourth man in the party when they left the place on Washington street, Newark. There was evidence of a doctor who examined the taxicab driver after the accident, that he had been drinking and there was also evidence from others that the taxicab driver and also the complainants had been drinking. There was sufficient evidence in the case to warrant the jury in finding that both the taxicab driver and the occupants of the car had been drinking together at the request and with the knowledge of the plaintiffs and that they were, or to some extent, under the influence of liquor when they left the place in Washington street, Newark, and directed the driver of the taxicab to take them to Elizabeth. There is no evidence in the case that any of the plaintiffs complained to the driver of the speed of the car which he was driving. While they were proceeding to Elizabeth in the taxicab the taxicab struck a telephone pole and the plaintiffs were injured, as a result of which this suit was brought.
The case of the defendant below was presented to the court and jury upon the theory that the plaintiffs well knew that the taxicab driver had been indulging in drink and that, therefore, they assumed the risks and dangers while riding in a taxicab driven by him. The jury rendered a verdict in favor of the defendants, Yellow Cab, Incorporated, and John Le Page, of no cause of action, upon which judgment was entered. From this judgment the appellants, who were the plaintiffs below, appeal here setting up thirty causes for reversal of which seven are argued here under five points.
The first point argued is that it was error for the court to deny plaintiffs' request that the pleadings should be given to the jury to be taken to the jury room. There appears to be no such request in the state of the case although an exception seems to be taken to such a refusal. As there is no reason shown for such a request in the record as it appears before us, this point is without merit.
The next cause for reversal argued is that the court erroneously refused to charge the plaintiffs' second request and that the instruction given to the jury by the court in lieu thereof was erroneous. There is nothing in the record before us to show that counsel for the appellant excepted to the refusal of the court to charge plaintiffs' second request and, therefore, there is no merit in this contention.
The next point argued is that the court erroneously refused to charge the fifth request. There is nothing in the record before us to show that counsel for the appellant excepted to the refusal of this request to charge. ...