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Horowitz v. Schanerman

Decided: October 2, 1936.

CHARLOTTE HOROWITZ, INFANT BY MORRIS HOROWITZ, HER NEXT FRIEND, AND MORRIS HOROWITZ, INDIVIDUALLY, PLAINTIFFS-RESPONDENTS,
v.
GEORGE SCHANERMAN, DEFENDANT-APPELLANT



On appeal from the Essex County Circuit Court.

For the plaintiffs-respondents, Fast & Fast (Herman L. Fast, of counsel).

For the defendant-appellant, Wall, Haight, Carey & Hartpence (John A. Hartpence and James R. Laird, Jr., of counsel).

Rafferty

The opinion of the court was delivered by

RAFFERTY, J. This is an appeal from a judgment entered upon the verdict of a jury in an action tried at the Essex County Circuit Court. The grounds of appeal relied upon are that the trial court erroneously denied motions of nonsuit and for direction of verdict made on behalf of defendant.

The action was brought to recover for personal injuries alleged to have been sustained by the infant plaintiff and for damages sustained by her father incidental to the curing of said injuries.

It appears that on the date of the accident the infant plaintiff was waiting to board a trolley car at a street intersection in the city of Newark and that she, with several other persons, waited for the approach of the trolley in a store located at the corner of the intersection. Just prior to the arrival of the trolley, plaintiff, with several other persons, walked out of the store and crossed the width of the sidewalk with the

evident purpose of boarding the trolley. Having reached the curb, and the trolley being at a standstill, plaintiff testified that she took one step off the curb and was struck by an automobile truck. Another witness testified that he thought plaintiff had taken one or two steps. Plaintiff testified as follows:

"I walked out of the candy store because I had heard the trolley coming along and I walked off the stairs and I was ready to step off the curb, the trolley had stopped, was at a standstill, and I noticed headlights, and I had taken one step off the curb and that's all I remember. Q. Had you noticed the truck before that? A. All I noticed was the bright headlights. Q. Did you look around before you stepped off the curb? A. Yes, sir. Q. You do not know who struck you, or what. A. No."

There was testimony that the distance from the curb to the westerly rail of the south-bound trolley was about ten feet.

After the collision the automobile truck continued along the street and although chase was made, it was lost from view. Shortly thereafter the truck was seen to turn into another street and a witness, Frankel, an attorney, who had obtained a part of the motor vehicle registration plate number as the car passed the scene of the accident, took the entire registration number and identified the truck as being the one which had struck plaintiff. This witness also noted the name appearing on the side of the truck at this time.

Appellant urges that plaintiff was guilty of contributory negligence in stepping off the curb and into the pathway of the automobile truck and cites Branigan v. Demarest, 109 N.J.L. 123; Trimboli v. Public Service Co-ordinated Transport, 111 Id. 481, and cases of similar import as authority for ...


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