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McGinley v. Winters

Decided: April 28, 1933.

CHARLES B. MCGINLEY, ADMINISTRATOR AD PROSEQUENDUM OF THE ESTATE OF ROXOR PEARCE, DECEASED, PLAINTIFF-RESPONDENT,
v.
CHARLES WINTERS, DEFENDANT-APPELLANT



On appeal from the Supreme Court.

For the defendant-appellant, Connolly & Hueston.

For the plaintiff-respondent, Augustus S. Dreier.

Trenchard

The opinion of the court was delivered by

TRENCHARD, J. This is the appeal of the defendant below from a judgment entered on the verdict of the jury in favor of the plaintiff in an accident case.

The first point of the defendant-appellant is "that the trial judge erred in refusing to grant defendant's motion for a nonsuit."

The motion was based upon the sole ground that "there was no proof that the accident caused death." That ground was ill-founded in point of fact.

The evidence tended to show the following matters of fact: The defendant's motor truck was traveling on a public highway in Union county. It collided with and upset the automobile of one Hamilton in which the plaintiff's intestate was riding as an invitee. A part of the metal work of the defendant's

truck pierced the decedent's body injuring him severely. Decedent was immediately taken to a hospital and was operated on the next day and died four days after the accident. Prior to the accident decedent had always enjoyed good health. There was no evidence of any intervening cause of death. The inference was therefore justified that the accident in question caused the decedent's death, and the question was therefore properly submitted to the jury. Stern v. Stulz-Sickles Co., 109 N.J.L. 415; Batton v. Public Service Corp., 75 Id. 857.

Under this same head the defendant argues that plaintiff's Exhibit No. 7 was improperly admitted in evidence. But a sufficient answer to that contention is that there was no exception to the ruling of the trial judge admitting such evidence, and therefore the ruling will not be reviewed on appeal. Kargman v. Carlo, 85 N.J.L. 632; Neipert v. Yellow Cab, Inc., 110 Id. 351.

The only other point argued is that the trial court erred in refusing to charge as follows:

"It is a question for the jury to determine whether or not the decedent and the operator of the car in which he was an occupant were engaged in a joint enterprise at the time of ...


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