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Smith v. Essex County Park Commission

Decided: January 31, 1933.

AMY SMITH, PLAINTIFF-APPELLANT,
v.
ESSEX COUNTY PARK COMMISSION, DEFENDANT-RESPONDENT



On appeal from the Supreme Court.

For the appellant, John B. Brown.

For the respondent, J. Henry Harrison.

Campbell

The opinion of the court was delivered by

CAMPBELL, CHANCELLOR. This is an appeal from a judgment entered upon a verdict directed by the court below in favor of the defendant below.

The plaintiff below is the widow of Raymond A. Smith who was a member of the Essex county park police force and who was injured on November 6th, 1926.

At the time of the injury he was riding a motorcycle and was attempting to overtake persons who were speeding, an act which was in line with his duties. He fell from his motorcycle and in falling the revolver which he was carrying was brought in forcible contact with his abdomen, "jammed" into it, as is said, causing severe bruising. He had, some years before, been operated on for appendicitis and this bruising was at or near the scar which resulted from that operation. About three years after this happening and injury of November 6th, 1926, he entered the Orange Memorial Hospital for an ailment said to be an ulcer in the duodenum and died October 25th, 1929, following an operation based upon such diagnosis.

The action was brought to recover the amount of a pension to which the plaintiff would be entitled if her husband lost his life in the performance of his duty; the defendant below having denied liability.

At the end of the plaintiff's case a nonsuit was moved, and not decided but taken under advisement by the trial judge and the defendant proceeded with its case and at the conclusion of the entire case moved a direction of verdict in its favor upon the following grounds, which are the grounds urged upon the motion for nonsuit, somewhat enlarged:

"1. That there is no reasonable basis for the inference that the injuries suffered by the plaintiff's intestate in 1926 was the cause of his death in 1929, and that therefore the case clearly shows that the deceased did not lose his life in the performance of his duty, which is the consideration in the statute.

2. That there is no causal connection shown between the injury and the death, the record of the case clearly showing even from the plaintiff's own testimony that there were a number of other factors which would have to be considered in an injury of this kind and in a death of this kind from ulcers as alleged, and the testimony of the defendant clearly showing that this ...


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