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Ceccomancino v. D''Onofrio

Decided: September 27, 1933.

JOSEPHINE CECCOMANCINO, BY HER NEXT FRIEND, MARY CECCOMANCINO; ANNA CECCOMANCINO, BY HER NEXT FRIEND, MARY CECCOMANCINO; MARY CECCOMANCINO, INDIVIDUALLY, AND JOSEPHINE NOBLE, PLAINTIFFS-RESPONDENTS,
v.
ANTHONY D'ONOFRIO, SAM KOSHER, SAM BERGER AND DORA BERGER, DEFENDANTS-APPELLANTS



On appeal from the Supreme Court.

For the appellant Sam Kosher, Mark Townsend, Jr.

For the respondents, O'Neill & Broderick.

Wells

The opinion of the court was delivered by

WELLS, J. This is an appeal by the defendant Sam Kosher, from the judgment entered in the Supreme Court, Morris County Circuit, on verdicts rendered in favor of the plaintiffs, aggregating $1,781 against the defendants Sam Kosher and Sam Berger.

The actions were brought by the plaintiffs-respondents (hereinafter referred to as the plaintiffs) to recover damages for the personal injuries sustained by them as a result of a collision between a Ford sedan, in which they were riding, and the automobiles of the defendants Sam Kosher and Sam Berger.

There were four defendants, Anthony D'Onofrio, in whose car the plaintiffs were riding, Sam Kosher, the appellant, who was the driver of one of the cars figuring in the accident,

Sam Berger, the driver, and Dora Berger, the owner of the third car.

A nonsuit was entered as to the defendant Dora Berger and the case was apparently not pressed against the defendant D'Onofrio. Only Sam Kosher appeals.

The accident occurred about midnight, July 17th, 1932, between Mount Freedom and Morristown, New Jersey, on the "Mount Freedom road," an improved highway sixteen feet in width. The plaintiffs were returning to their home in Dover, New Jersey, from a trip to New York and Coney Island and were proceeding in a Ford sedan, owned and operated by D'Onofrio, in a northerly direction toward Mount Freedom. The defendant Sam Berger and appellant Sam Kosher, were coming from Mount Freedom to their homes in Union City, New Jersey, and proceeding in separate automobiles, Kosher following Berger, in a southerly direction, when the automobile of Berger came into contact with D'Onofrio's Ford and immediately thereafter a second collision occurred between the car of appellant and the Ford of D'Onofrio, resulting in the injuries for which the judgments appealed from were awarded.

The appellant sets down three grounds of appeal.

First that the court erred in not granting at the conclusion of the plaintiffs' case, the appellant's motion for a nonsuit, and second, because the court erred in not granting at the conclusion of the whole case, the appellant's motion for a direction of a verdict. Both motions were based on the ground that there was no evidence of negligence on the part of the appellant. As to these two points, which may be dealt with together, there was testimony from which the jury could find that the car in which the plaintiffs were riding was traveling on its right side of the road up a long hill slowly -- in first or second gear -- and that D'Onofrio, the driver, observed Berger's car about three hundred feet away, coming toward him at a fast rate of speed, as was indicated by its bobbing headlights, and when the Berger car reached a point about twenty-five feet away from the D'Onofrio car it swerved to its left side of the road and struck the D'Onofrio car a glancing blow,

turning it slightly to the left, and almost immediately thereafter, and while the D'Onofrio car was still on its right side of the highway, appellant's car, closely following the Berger car, crashed into the D'Onofrio car with such violence as to turn it over three times; that the Berger car continued after the impact down the road one hundred to one hundred and fifty feet and appellant's car seventy-five to ninety feet, ...


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