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Walling v. General Woodcraft Co.

Decided: April 28, 1933.

CHARLES H. WALLING, PLAINTIFF-APPELLANT,
v.
GENERAL WOODCRAFT COMPANY ET AL., DEFENDANTS-RESPONDENTS



On appeal from the Supreme Court.

For the plaintiff-appellant, John C. Grimshaw and Frank G. Turner.

For the defendants-respondents, McDermott & Finegold.

PER CURIAM.

This is an appeal from a judgment of nonsuit entered in the Supreme Court after trial at the Monmouth Circuit.

On September 17th, 1929, at two-thirty P.M., plaintiff was driving his car northerly on Main street, in Matawan. From the southeast, a highway called Atlantic avenue enters Main street at a sharp angle, approximating thirty-five degrees, but does not cross it. A truck of defendant General Woodcraft Company, and operated by the other defendant Fred Henke, was proceeding on Atlantic avenue toward Main street. The two vehicles, out of sight of each other, were approaching on converging paths. In the angle between Atlantic avenue and Main street, and extending to the sidewalk line is a store building, of flat iron shape, and southerly from the corner

building are two other buildings with only a few feet of open space between the several buildings. So that for upwards of one hundred feet back from the corner, plaintiff's view of Atlantic avenue was practically cut off. The map in evidence shows that Atlantic avenue is thirty feet wide and Main street is thirty-three feet wide, between curb lines, and the distance from the southerly point of intersection diagonally across Atlantic avenue, on the line of Main street, and up to the northerly point of intersection, is somewhat more than fifty feet of clear road surface. Main street is paved with concrete and Atlantic avenue is surfaced with cinders.

In this situation, the evidence discloses that plaintiff was driving on Main street, in a rain, at eighteen to twenty miles an hour; that he did not slacken his speed; that he blew his horn thirty feet from the intersection. He testified that he could stop his car in twenty feet. When he was beyond the house line, and about forty-eight feet from the point of collision, he had a view of Atlantic avenue and observed the truck approaching at a speed of twenty-five or thirty miles an hour. The truck did not stop, nor did the plaintiff stop his car, or attempt to do so until just before the front of plaintiff's car came into collision with the rear of the truck, which had proceeded into Main street. Plaintiff testified that he attempted to turn sharply to his right to avoid collision but the two vehicles collided and plaintiff's automobile turned over; that he could not turn to the left because cars were approaching from the opposite direction.

The learned trial judge, in passing upon the motion to nonsuit, said:

"In the circumstances I feel obliged to hold that the plaintiff was not in the exercise of care and caution which ordinarily and reasonably would be required of a careful driver, in that his own statement is that he was driving his car at eighteen or twenty miles an hour at an intersection, and in the circumstances it would appear to have been in violation of the provision of the Traffic act. One cannot go blindly into an intersection and then because there is a collision by the unexpected appearance of a vehicle also having a right

upon the highway and then say that he is free from negligence himself."

The rule applicable is stated in New Jersey Express Co. v. Nichols, 33 N.J.L. ...


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