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Tobish v. Cohen

Decided: January 31, 1933.

MARION R. TOBISH, PLAINTIFF-RESPONDENT,
v.
CARRIE COHEN AND ROBERT WEIDNER, DEFENDANTS-APPELLANTS; GUSSIE R. SMITH, PLAINTIFF-RESPONDENT, V. CARRIE COHEN AND ROBERT WIEDNER, DEFENDANTS-APPELLANTS



On appeal from the Supreme Court.

For Marion R. Tobish, plaintiff-respondent, Samuel Koestler.

For Gussie R. Smith, plaintiff-respondent, Augustine V. Gribben.

For Carrie Cohen, defendant-appellant, Harry Heher and Heine & Laird.

Wells

The opinion of the court was delivered by

WELLS, J. This is an appeal from two judgments rendered on verdicts for the plaintiffs in the Mercer Circuit of the Supreme Court.

The plaintiffs, Marion R. Tobish and Gussie R. Smith, were invited by the defendant Carrie Cohen to ride with her in her Cadillac automobile from Trenton to Atlantic City and back.

The car was driven by Raymond Gaskill, Mrs. Cohen's chauffeur.

At the intersection of the White Horse Pike with a cross road about one and a half miles to the north of Egg Harbor, the Cohen car traveling toward Atlantic City came into collision with the car owned and operated by Robert Weidner, resulting in injuries to the plaintiffs.

At the time of the accident the Weidner car, facing toward Atlantic City, was at a standstill on the right side of the White Horse Pike, for the purpose of making a left-hand turn into the cross road. Gaskill, defendant's chauffeur, did not become aware of the situation until too late to avoid a collision.

Suit was brought against Carrie Cohen and Robert Weidner, but there being no evidence of negligence on the part of Weidner, there was a direction of a nonsuit in his favor, from which no appeal is taken.

There was no motion for nonsuits or direction of verdicts in favor of the defendant in the instant case.

The facts briefly are as follows: The Cadillac car was a large heavy Imperial Limousine type. On the front seat beside Raymond Gaskill was his wife. The two plaintiffs and Mrs. Cohen occupied the back seat.

Before reaching the White Horse Pike and about eighteen to twenty miles from the place of the accident and about fifteen minutes prior thereto, the defendant's car had been driven at such a rate of speed over a depression or bump in the road, at or near Haddonfield, as to throw the plaintiffs to the roof of the car, whereupon Miss Tobish exclaimed to the chauffeur: "What's the matter with you -- drive slower."

Mrs. Smith, who knew the chauffeur, said: "Raymond have a heart -- we are in no hurry to get to Atlantic City." He apologized and slackened his speed.

After they reached the White Horse Pike, which is for the most part straight, level and at least forty-two feet wide, the occupants of the rear seat conversed and, there being very little traffic, the plaintiffs did not pay much attention to the road. The car being heavy, ran smoothly and the speed was not particularly noticeable on a concrete road in the open country.

When about one hundred feet distant Mrs. Smith saw the car of Weidner stopped on the right side of the White Horse Pike. At the same time the Cadillac picked up speed and was going very fast -- at least fifty miles an hour -- and before she could say anything to Mrs. Cohen, they were right on top of the Weidner car and the accident happened. Mrs. Smith said that during the ride down the Pike at times she was looking ahead and at times she was talking. There was nothing ...


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