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Hammersma v. Smith

Decided: April 28, 1933.

NELLIE HAMMERSMA, ADMINISTRATRIX AD PROSEQUENDUM OF THE ESTATE OF JACOB EDWIN HAMMERSMA, DECEASED, RESPONDENT,
v.
HENRY L. SMITH AND BENJAMIN HORNSTRA, APPELLANTS



On appeal from the Supreme Court.

For the appellants, Kellogg & Chance.

For the respondent, Aaron L. Simon.

PER CURIAM.

This is an appeal by the defendant below from a judgment recovered by the plaintiff in the New Jersey Supreme Court, Passaic County Circuit, on the following facts:

On September 4th, 1930, at noon, the automobile of the defendant Henry L. Smith, then under the control and management of his chauffeur, Hornstra, was traveling along Gregory avenue, in the city of Passaic, in a westerly direction. The plaintiff's decedent, a messenger boy aged sixteen, was riding his bicycle on the same street in an easterly direction. A collision took place, resulting in such serious injuries to the plaintiff's intestate that he died the same day. The trial court denied defendants' motion for a nonsuit and for a directed verdict.

The refusal of the court to nonsuit the plaintiff or direct a verdict in favor of the defendants is presented as error and argued upon the ground that there was no negligence on the part of the defendants that was the proximate cause of the happening and that the plaintiff's intestate was guilty of contributory negligence which was the proximate cause of the injuries and death. Now, if there was any negligence proven on the part of the defendants, or if there were any facts in the case from which such negligence could legitimately be inferred, or if the proofs on the question of contributory negligence were doubtful, the motions for nonsuit and direction of verdict were properly denied.

From the proofs submitted, the jury might have found, and doubtless did find, facts supporting the complaint in this case as evidenced by the following testimony:

One witness for the plaintiff, Joseph Berger, apparently disinterested, was near the scene of the accident at the time it happened. He had just gotten into his car, which was

parked at the curb on the right, and heard a crash. Looking up, he saw the plaintiff's intestate lying on the roadway, in a place to the right side of the center line of the road, defendant's car traveling thirty or forty feet after the collision took place. The boy's bicycle, too, was on the right of the center of the road. He further said that he heard no horn sounded as a warning, which fact defendant later admitted.

This accident happened almost in front of where the witness's car was stationed, a distance of about twenty feet away; he further says there was in fact no truck in front of the boy at the time and from behind which he came, as the defendant contends; that the boy was on the right-hand side of the roadway.

This testimony as to the position of the body of the plaintiff's intestate in the roadway, and that he lay well on the right-hand side of the center line of the road after the happening, was corroborated by two other apparently disinterested witnesses.

Now, on the motion for nonsuit, these proofs must be considered in the light most favorable to the plaintiff with all legitimate inferences that may be drawn therefrom and measuring the plaintiff's case by this rule it is ...


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