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Cella v. Roth

Decided: September 27, 1934.

JOSEPH CELLA, BY HIS NEXT FRIEND, ADELINA CELLA, AND ADELINA CELLA, INDIVIDUALLY, PLAINTIFFS-RESPONDENTS,
v.
GEORGE ROTH, DEFENDANT-APPELLANT



On appeal from the Supreme Court (Hudson county).

For the appellant, Cox & Walburg.

For the respondent, Paul F. Cullum.

Wells

The opinion of the court was delivered by

WELLS, J. This is an appeal from a judgment entered in the Supreme Court in a negligence case on a verdict of a jury

in favor of the plaintiff. The suit was instituted against George Roth and Vincenzo Matassa to recover damages for injuries sustained July 27th, 1932, by the infant plaintiff, Joseph Cella, a boy twelve years of age (hereinafter spoken of as plaintiff). His mother, Adelina Cella, sued to recover expenses incurred as the result of her son's injuries. The defendant Vincenzo Matassa was not served with the summons and complaint, and the case was tried against the defendant George Roth alone, resulting in a verdict against him for the sum of $2,400 in favor of Joseph Cella, and the sum of $300 in favor of Adelina Cella.

There was considerable difference between the version of the accident as given by the plaintiff and the version given by the defendant.

Both plaintiff and defendant, however, agree that the plaintiff was struck by an automobile owned and operated by Vincenzo Matassa which at the time of the accident was proceeding in a southerly direction on the Hudson county boulevard in North Bergen township (hereinafter spoken of as boulevard).

The original complaint alleged that the plaintiff at the time of the accident was crossing the boulevard from west to east on the southerly crosswalk and that he was struck in the center of the boulevard. This was also defendant's contention. The allegation was that the accident was caused by the joint negligence of Roth and Matassa.

At the trial Matassa not appearing, the plaintiff's attorney moved to amend the complaint to allege that the plaintiff was crossing Hoboken street from south to north instead of crossing the boulevard from west to east.

The plaintiff's testimony tended to show that the defendant Roth was operating his automobile in an easterly direction up a steep incline on Hoboken street and that the plaintiff was crossing, on a green traffic light, Hoboken street from the south to the north side thereof, at the westerly side of the Hudson boulevard; that the defendant Roth disregarding a red traffic light against him ...


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