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Mimnagh v. Falato

Decided: January 31, 1933.

CLARA MIMNAGH, RESPONDENT,
v.
GISELLA FALATO, APPELLANT



On appeal from the Supreme Court.

For the appellant, French, Richards & Bradley (Floyd H. Bradley, of counsel).

For the respondent, Albert S. Woodruff.

Brogan

The opinion of the court was delivered by

BROGAN, J. This case presents an appeal from a verdict recovered in the Camden County Circuit of the Supreme

Court by the plaintiff below. The complaint charges that on July 24th, 1929, the defendant was the owner and controlled the operation of an automobile through her servant or agent which at the time of the happening complained of was being operated along White Horse Pike at or near the intersection made by Harvard avenue, a public highway in the borough of Stratford, Camden county, New Jersey. The plaintiff was struck by the defendant's automobile while crossing the highway at this point and suffered personal injuries which she charges were caused by and due to the negligent operation of the automobile. The answer to the charges of the complaint consisted in a general denial and the separate defense that there was no negligence on the part of the plaintiff. Issue was joined and the case tried and the plaintiff received a verdict from the jury and the defendant-appellant now appeals to this court and seeks a reversal of the judgment below on two grounds. First, because the trial court refused to direct a verdict in favor of the defendant, and, secondly, because the trial court erroneously admitted testimony over objection, as to the amount of money paid by the plaintiff below for the services of a housekeeper during the plaintiff's incapacity from her injuries. The following are the facts:

The defendant, Gisella Falato, left her home in Gibbsboro to visit a married daughter at Hi-Nella, Camden county. Her daughter Teresa drove the car. When they reached the home of Mrs. Cook, the married daughter, the daughter, Teresa, asked and received permission from her mother to use the car to go back to Gibbsboro, there to go swimming. There is ample testimony in the case to justify the conclusion that there was an understanding between the mother and the daughter, Teresa, that she was to return with the car when she had finished swimming in order to take her mother home to Gibbsboro in time for supper.

At the time of the accident the automobile was being operated by the daughter, Teresa, who had finished her swimming and was returning to Hi-Nella to get her mother, thence to return home to Gibbsboro.

The plaintiff, a widow, sixty-five years old, had alighted from a bus which was traveling south on the White Horse Pike. She started across the roadway and had almost reached the other side when the defendant's car, traveling northward, struck her. It was admitted that the warning of a horn was not given.

The appellant's first ground for reversal is that the defendant should have had a directed verdict in her favor, and is based upon two reasons in support of that motion: (a) No actionable negligence on the part of the appellant; (b) that the presumption of the automobile being under the control of the defendant and that the relation of master and servant existed at the time of the accident had been overcome by undisputed proof.

The charge of contributory negligence has been abandoned.

The first reason advanced under this ground for reversal that there was no actionable negligence on the part of the appellant has not been argued and likewise must be considered as having been ...


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