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Danner v. Kennedy

Decided: September 27, 1933.

HENRY A. DANNER, BY HIS FATHER AND NEXT FRIEND FREDERICK C. DANNER, AND FREDERICK C. DANNER, IN HIS OWN RIGHT, PLAINTIFFS-RESPONDENTS,
v.
EDWARD P. KENNEDY AND GUSTAVE PANOKE, SEVERALLY AND IN THE ALTERNATIVE, DEFENDANTS-APPELLANTS



On appeal from the Supreme Court.

For the appellants, Carr & Carroll (Walter R. Carroll, of counsel).

For the respondents, Horace G. Brown (Asa M. Stackhouse, of counsel).

Trenchard

The opinion of the court was delivered by

TRENCHARD, J. The plaintiffs below, one the driver and the other the owner of plaintiff's automobile, recovered a

verdict and judgment against both the driver and the owner of defendant's automobile for damages sustained by the plaintiffs in a collision between such automobiles at a highway intersection, and the defendants appeal.

The defendants first say that the trial judge erred in refusing to grant a motion for nonsuit based upon the ground of the contributory negligence of the plaintiff driver.

We think not.

In passing upon a motion to nonsuit upon the ground of the plaintiff's contributory negligence, the court cannot weigh the evidence, but must take as true all evidence which supports the plaintiff's view and must give the plaintiff the benefit of all legitimate inferences which may be drawn therefrom in his favor; and where the proven facts and circumstances are such that reasonable minds may reasonably differ as to the fair inference or conclusion to be drawn therefrom as to whether or not the plaintiff exercised reasonable care for his own safety, a jury question is presented and the motion to nonsuit must be denied. Andre v. Mertens, 88 N.J.L. 626; 96 A. 893; Cady v. Trenton and Mercer, &c., Corp., 104 N.J.L. 572; 141 A. 806.

In the present case, regard being had to such rules, the nonsuit was properly denied, for under the evidence, it was open to the jury to find, if they saw fit, the following matters of fact:

The accident occurred at five-thirty P.M., on June 30th, 1931, daylight saving time, on a dry, clear day, at a right angle intersection of two much traveled highways in a sparsely settled country district, one a gravelled road and the other a concrete road. The plaintiff Henry A. Danner, driving the automobile of the other plaintiff, approached such intersection upon the gravelled highway. The automobile of the defendant Kennedy, driven by the other defendant, approached such intersection from the plaintiff's left on the concrete highway. The plaintiff driver brought his car to a complete stop, ...


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