On appeal from a judgment of the Supreme Court.
For the plaintiff-appellant, Elmer Friedbauer.
For the defendant-respondent, Collins & Corbin and Edward A. Markley.
The opinion of the court was delivered by
DONGES, J. This is plaintiff's appeal from a judgment of the Supreme Court against him in favor of the defendant entered upon the verdict of a jury after a trial at the Passaic Circuit.
The action arises out of an automobile collision. Plaintiff was a passenger in a bus of the North Jersey Bus Company on July 14th, 1932, at nine o'clock in the evening, when that bus collided with the Pontiac car of the respondent, Frank Panico, on route 35, the North Jersey Shore road. His arm was on the window sill and was struck by the top of Panico's car and badly injured. The jury returned a verdict in favor of plaintiff, Charles Gross, against the defendant bus company and in favor of Panico against the plaintiff. The judgment based on the latter verdict is the only one involved on this appeal.
Two theories of the manner of the happening of the accident were presented at the trial. The road is a concrete road, thirty or more feet in width, and marked in three lanes, the center lane being designated for passing and the side lanes for straight driving. Plaintiff and his witnesses testified that the bus was proceeding partly in the center lane but with about three feet of its right side in the extreme right lane. It was going northwardly. They testified that as the bus was so proceeding, the car of Panico, going southwardly, pulled out from its right-hand lane into the center lane and struck the bus.
The story of respondent and his witnesses was that the bus, in passing a car going in the same direction as itself, drew over so far to the left that its left side was three feet over into the extreme left-hand lane and there the collision took place. Defendant's own testimony was to the effect that the bus came over so quickly he had no time to avoid the impact.
The first ground of appeal argued is that it was error for the court to charge defendant's fourth request, as follows:
"If you find that Panico's car was in the extreme right lane as it proceeded south, and that the bus struck Panico's car while it was in that lane, then the plaintiff cannot recover as against the defendant, Panico, and your verdict should be for Panico, one of no cause of action."
The complaint is that this charge restricted plaintiff to establishing that Panico did come over to the ...