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Simons v. Lee

Decided: January 22, 1937.

LAWRENCE SIMONS, PLAINTIFF-RESPONDENT,
v.
ELWOOD B. LEE, DEFENDANT-APPELLANT; KENNETH CORBIN, PLAINTIFF-RESPONDENT, V. ELWOOD B. LEE, DEFENDANT-APPELLANT; READ THOMPSON, AS ADMINISTRATOR AD PROSEQUENDUM OF THE ESTATE OF MARY E. THOMPSON, DECEASED, PLAINTIFF-RESPONDENT, V. KENNETH CORBIN AND ELWOOD B. LEE, DEFENDANTS-APPELLANTS



On appeal from the Supreme Court.

For the appellant Elwood B. Lee, Walter S. Keown.

For the respondent Lawrence Simons, Harry E. Newman.

For the respondent Kenneth Corbin, W. Durward McCloskey.

For the respondent Read Thompson, as administrator ad prosequendum, Camp, Lederer & Citta.

Hetfield

The opinion of the court was delivered by

HETFIELD, J. This appeal brings up for review three judgments entered in the Supreme Court, Ocean Circuit. The suits were instituted to recover for personal injuries sustained by the plaintiffs, Simons and Corbin, and for the death of Mary E. Thompson, resulting from an automobile accident which occurred on June 2d, 1935, when a car owned and operated by the plaintiff Corbin in which Simons and the decedent, Mary E. Thompson, were passengers, collided with an auto owned and driven by the defendant Lee at the intersection of two roads in Manchester township, Ocean county. The plaintiff Corbin was originally made a co-defendant with Lee in the Thompson suit, but a discontinuance was entered as to him at the commencement of the joint trial of the three cases, which resulted in a verdict in favor of each plaintiff, amounting to $3,000 for Simons, $8,000 for Corbin, subsequently reduced on a rule to show cause to $7,500, and $5,000 for the estate of Mary E. Thompson.

It is first argued that the trial court erroneously refused to nonsuit the plaintiffs and direct a verdict for the defendant, as the plaintiff failed to present sufficient evidence to support a finding of negligence on the part of the defendant. These grounds of appeal are not available to the appellant because of the fact that a rule to show cause was allowed and discharged in each of the three cases, and one of the reasons assigned for making the rules absolute, was that the verdict was against the weight of evidence. It is well settled that where a verdict has been attacked on a rule to show cause as being against the weight of evidence, the consideration and disposition of the rule covers the ground of a motion to nonsuit and a motion to direct, and operates as a bar to any argument or consideration of such grounds on an appeal. Robins v. Mack International, &c., Corp., 113 N.J.L. 377; Freschi v. Mason, 108 Id. 272; Catterall v. Otis Elevator Co., 103 Id. 381; Boniewsky v. Polish Home, 103 Id. 323; Noonan v. Great Atlantic and Pacific Tea Co., 104 Id. 136; Cleaves v. Yeskel, 104 Id. 497; and Overand v. Kiernan, 105 Id. 112.

The second point argued is based on the fifth, sixth and seventh grounds of appeal consisting of exceptions taken by the appellant to the instructions by the court to the jury, which exceptions read:

Mr. Keown: "I did want to take exception to that part of your honor's charge wherein your honor did not read the traffic regulation concerning the duty of a motorist in approaching a stop sign."

Mr. Keown: "I also respectfully pray an exception to that part of your honor's charge when, after calling that to your attention, your honor called to the jury's attention the fact that that act had been repealed."

Mr. Keown: "I respectfully pray an exception to failure of your honor to charge concerning the stop sign in the ...


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