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Lipschitz v. New York and New Jersey Produce Corp.

Decided: September 27, 1933.


On appeal from the Supreme Court.

For the appellants, McDermott & Finegold (Harold McDermott, of counsel).

For the respondent David Lipschitz, Herrigel, Lindabury & Herrigel (Joseph S. Lindabury, of counsel).


The opinion of the court was delivered by

HEHER, J. Defendants appeal from a judgment of the Supreme Court, entered upon the verdict of a jury empaneled

at the Monmouth Circuit, awarding to respondent David Lipschitz damages for personal injuries suffered by him as a result of a collision between a motor truck owned by the corporate defendant, and operated by its servant and co-defendant, Smith, and a like vehicle owned and driven by respondent.

Appellants urge that the trial court erred (1) in denying their motion for a nonsuit, and (2) in refusing to direct a verdict in their favor. They noted an exception to the trial judge's refusal to direct a verdict, but not to his denial of the motion to nonsuit. They now argue that the evidence did not establish the negligent operation of their truck, and that, even so, respondent was guilty of contributory negligence.

The collision occurred at or near the intersection of highways known as Player avenue and James street and State Highway Route No. 25 in the village of Lindeneau, in the county of Middlesex. There is a convergence of Player avenue and James street at the State Highway. The pavement of the latter thoroughfare was constructed of concrete, and had three definitely marked travel lanes, of the total width of twenty-nine feet, with gravel shoulders on either side. There was a sharp conflict in the evidence as to the collision and the attendant circumstances. There was a wide divergence in the narratives of the operators of these vehicles. Moving in opposite directions on the State Highway, respondent's truck approached the intersection from the east, and appellant's from the west. Respondent testified that he planned to turn south into Player avenue; that as he approached the intersection, he gradually moved his truck from the northerly to the center traffic lane, and that when the truck was one hundred feet from the intersection, it was entirely in the center lane; that it continued on, in that lane, to the intersection; that he turned his truck to the south into Player avenue when appellants' truck was a distance of fifty to seventy-five feet west of the intersection, and, before doing so, signalled his purpose by an extension of his hand; and that the collision occurred after he had

moved a distance of twelve to fifteen feet across the concrete pavement to the south, and after his front wheels had left the pavement. The point of contact was near the right center of his truck. It was a violent collision. The body of respondent's truck was knocked from the chassis, and respondent was thrown to the roadway and severely injured. There was evidence tending to corroborate the testimony of respondent, particularly as to the point of the collision.

Appellants, on the other hand, insisted that the collision occurred after their truck had passed the intersection. Smith testified that when his truck was fifty feet west of Player avenue, he observed respondent's truck in the center lane, a distance of one hundred to one hundred and twenty-five feet east of the intersection; that his truck crossed the intersection, in the southerly traffic lane, and that it had reached a point eighteen feet beyond, respondent's vehicle, moving at high speed, suddenly turned from the center to the southerly traffic lane, and continued thereon, with speed unabated, a distance of twenty-five feet, and collided head-on with appellants' truck. Smith testified that his truck was moving at a speed of from ten to twelve miles per hour, and that he could bring it to a stop in a distance of six to eight feet.

In these circumstances, the motion to direct a verdict was properly denied. In passing upon motions to nonsuit and for the direction of a verdict, the court cannot weigh the evidence, but must take as true all evidence which supports the view of the party against whom the motions are made, and must give him the benefit of all legitimate inferences which are to be drawn therefrom. Andre v. Mertens, 88 N.N.L. 626; Skiba v. Kmieleski, 106 Id. 597; Maudsley v. Richardson & Boynton, 101 Id. 561. Where fair-minded men might honestly differ as to the conclusions to be drawn from facts, ...

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