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Johnson v. Johansen

Decided: September 27, 1934.

MARTHA JOHNSON, ADMINISTRATRIX AD PROSEQUENDUM OF KNUTE JOHNSON, DECEASED, PLAINTIFF-RESPONDENT,
v.
ERNEST JOHANSEN, ADMINISTRATOR OF THE ESTATE OF THEODORE ARNBERG, DECEASED, ET AL., DEFENDANTS-APPELLANTS



On appeal from the Supreme Court, Middlesex County Circuit.

For the appellants, John C. Stockel.

For the respondent, David T. Wilentz.

Campbell

The opinion of the court was delivered by

CAMPBELL, CHANCELLOR. This is an appeal from a judgment, entered upon verdict, in an action for damages resulting from the death of respondent's decedent, which death was

caused, as is said, by the negligence of appellant and appellant's decedent in the operation of a motor vehicle owned by the appellants, Ernest Johansen and Theodore Arnberg, and operated by the latter.

Four grounds are urged for reversal.

The first and second are: error in refusing to nonsuit and to direct a verdict in favor of the appellants. These motions were urged upon two grounds: (a) that there was no proof of negligence, and (b) because the proofs established that respondent's decedent was a licensee toward whom appellants owed no duty other than to abstain from acts productive of willful harm and injury as to which there was no proof.

We find no error in these rulings. The proofs indubitably presented both questions for solution by the jury.

The third ground of appeal is directed at the following portion of the charge: "I said to you that the defendants say, in the first place, that the driver was not negligent; and, in the second place, that the deceased, that is, Knute Johnson, was himself guilty of negligence which contributed to this happening; but, let me say to you * * * that from the evidence in this case there is none that the court remembers from which a jury could say that there was contributory negligence on the part of the deceased, Knute Johnson. So far as that phase of the case is concerned, you will not be called upon to determine it."

This was a binding instruction, completely removing from consideration by the jury, the question of negligence of respondent's decedent, contributing to the happening.

This was error. There was in the proofs that from which it might reasonably be said that respondent's decedent did not act the part of a reasonably prudent person. Under such circumstances a jury question is presented. 45 C.J. 1016, § 566; Ibid. 1017, § 568; Tobish v. Cohen, 110 N.J.L. 296; Yanco v. Thon, 108 Id. 235; Sussman v. Sussman, Ibid. 384; Audino v. ...


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