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Prange v. McLaughlin

Decided: May 17, 1935.

DOROTHY PRANGE ET AL., PLAINTIFFS-RESPONDENTS,
v.
HUGH F. MCLAUGHLIN, DEFENDANT-APPELLANT



On appeal from judgments of the Hudson County Circuit Court.

For the defendant-appellant, John J. Fallon.

For the plaintiffs-respondents, David M. Klausner.

Donges

The opinion of the court was delivered by

DONGES, J. This appeal brings up judgments of the Hudson County Circuit Court in favor of the plaintiffs-respondents in a suit to recover for injuries received by the plaintiff wife and consequential damages of the husband.

The facts are that, on January 28th, 1932, the female plaintiff was walking along the sidewalk in front of 64 Glenwood avenue, Jersey City, an apartment house owned by the defendant-appellant, and stepped into a hole caused by a break in the cement sidewalk, was thrown into the gutter, and her ankle fractured.

The grounds of appeal are that it was error to refuse the motion to nonsuit and the motion to direct a verdict for the defendant, to which refusals exceptions were taken.

The appellant became the owner of the property in 1925. He had been living in the property, occupying a second-story front apartment, for about two years prior to the accident.

A son of the appellant testified: "This condition came about by the running over this particular spot and the entire sidewalk, up into the driveway, by coal trucks and occasionally a moving van backing up on the sidewalk."

He further testified, as to the coal trucks: "Well, they just backed along the sidewalk and got as close as possible to the entrance of the apartment, and from there, they were unloaded by carrying bags of coal into the coal chute which was in front of the house." He testified that during the winter of 1930 he saw four or five trucks back on the sidewalk and in the winter of 1931 at least six or seven. There was no testimony as to the number of moving vans that backed over the curb onto the sidewalk.

He further said that the sidewalk was not broken when his father, the appellant, came into possession of the property, and that he observed, at various times, from his father's apartment, the sidewalk breaking and chipping away at the point where the plaintiff fell, when the coal trucks backed over the curb and put the right rear wheel on the sidewalk, leaving the left rear wheel in the gutter.

This witness, Hugh F. McLaughlin, Jr., also testified that his father was in ill health, that another son of defendant was his agent in charge of this property as well as the other business affairs of the defendant, and that he, the ...


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