On rule for change of venue.
For the defendant-petitioner, Harold B. Wells.
For the plaintiff-respondent, John A. Bernhard and Fred. W. Mittchell.
Before Justices Parker, Lloyd and Perskie.
The opinion of the court was delivered by
PERSKIE, J. This case comes up on the return of a rule to show cause on the part of the defendant, county of Burlington, for a change of venue from Essex county, where the suit is laid, to Burlington county, where the accident occurred, "or to some other county."
The action is based upon the alleged liability of the county of Burlington for injuries sustained by the plaintiff on August 20th, 1927, when it is claimed the automobile in which she was riding, as an invitee, overturned when the driver thereof,
in attempting to avoid hitting a tree (which plaintiff claims was standing in a county highway) turned the car, causing it to glance off the said tree and strike a stone curbing on the edge of the highway. The plaintiff was seventeen years of age at the time of the accident. This suit was instituted five years after the accident and about one month before the expiration of the two years after she became of age.
It is asserted for the defendant that the defense to be interposed by the county will require proof of location, history, construction and maintenance of the county and township road and the history and maintenance of the said tree. The defense will require about fifteen witnesses, members and officers of the county and township body. Three large, heavy deed books must be used whose leaves are not detachable. Three very old, large maps, three by six feet, made of cardboard, which cannot be folded. These records are used by the public at large and form a part of the valuable records of Burlington county. That transportation facilities are poor and the cost will be rather heavy to transport and care for the necessary witnesses.
It is also urged that this is a type of case where the jury should have the opportunity to inspect the premises (3 Comp. Stat., p. 2976, §§ 31, 35), and therefore the change should be made.
It is contended for the plaintiff that she is willing to consent to the admission of the necessary maps and to have the necessary deeds admitted upon certification. That she likewise has several witnesses and experts necessary for her case; that she is seriously injured, one leg being three-quarter inches shorter than the other; that she is practically impecunious, and it would likewise cast an undue burden on her to be obliged to come to Burlington county to try this case.
It is not easy to conclude which side has the greater equity on the score of inconvenience for, as held in Demarest v. Hurd, 46 N.J.L. 471, the court will never change the venue for this cause upon any nice balancing of circumstances of mere accommodation of the parties-inconvenience against ...