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Roberts v. Saunders

Decided: April 12, 1937.


On appeal from the Supreme Court.

For the plaintiff-respondent, Bolte & Miller.

For the defendant-appellant Harry Saunders, Siracusa & Backer.

For the defendant-appellant Jack Rashti, Garrison & Weaver.


The opinion of the court was delivered by

PARKER, J. The plaintiff-respondent, Roberts, while walking in an easterly direction on the north side of Arctic avenue in Atlantic City, New Jersey, was injured just after crossing Maryland avenue when an automobile owned and operated by the defendant Rashti ran up on the sidewalk and struck him after a collision between that car going north on Maryland avenue and an automobile owned by the defendant Joseph Saunders, and driven by the defendant Harry Saunders, going east on Arctic avenue.

Roberts instituted this action in negligence against Rashti, Harry Saunders and Joseph Saunders. All the defendants joined issue. The defendant Rashti filed a counter-claim for property damage against the defendant Harry Saunders, and the defendants Harry Saunders and Joseph Saunders each filed counter-claims against the defendant Rashti; Harry Saunders for personal injuries and Joseph Saunders for property damage to his automobile.

The action of the plaintiff, Roberts, against the defendant Joseph Saunders, was nonsuited or verdict directed for defendant on the ground that there was no proof that the automobile owned by Joseph Saunders and operated by Harry Saunders was being operated at the time of the accident on the business of the defendant Joseph Saunders. The counterclaim of Rashti against Harry Saunders was also nonsuited, and there was no exception to that ruling.

The remaining issues were submitted by the trial court to the jury, which returned a verdict in favor of the plaintiff, Roberts, against both defendants, Jack Rashti and Harry

Saunders, in the sum of $30,000, and a verdict in favor of Harry Saunders against the defendant Jack Rashti in the sum of $200. No verdict of any kind was returned on the counter-claim of Joseph Saunders against the defendant Rashti for property damage to his automobile. On rules to show cause, the plaintiff accepted a reduction of the verdict against Saunders and Rashti to $20,000, and judgment was entered for that amount and is before us on this appeal.

A number of grounds of appeal are argued in each case: some of which, though meritorious and in our view intrinsically sufficient for reversal, are unavailable for technical procedural reasons. We conclude, however, that the judgments should be reversed for other reasons presently to be stated.

The first error leading to reversal consists in the exclusion by the trial court of a question to the plaintiff on crossexamination. Plaintiff had testified that as he was about to cross Maryland avenue, his attention was attracted to the Rashti car by loud blowing of its horn some distance down the street. On cross, he was asked, and denied, that two days later at the hospital he had stated that no horn was blown until the two cars collided. He admitted his signature to a paper shown him, and was then asked whether it had been presented to him by a Mr. Gohl connected with the police department. An objection to this question was sustained and exception noted. Later, on defendant Saunders' case, Gohl was called as a witness, testified to the interview at the hospital, and that he, Gohl, wrote the statement and plaintiff signed it. The paper was then offered in evidence and excluded by the court over exception. A copy is printed in the state of the case and reads in part, "he was going to[o] fast to stop and never slowed up at corner and never blew his horn."

It was clearly error to exclude this paper. It is argued that the error was harmless, as Gohl's testimony to what plaintiff had said was already before the jury. Of course Gohl had so testified; but defendant was entitled to have the jury inspect the paper itself with plaintiff's admitted signature -- his written impeachment of his own testimony about

the loud blowing of the horn; and to gauge that testimony by his own signature and not merely by the oral testimony of another contradicting his denial of having said no horn was blown. If Rashti was indeed going at top speed and blowing no horn at a built-up crossing, the fact would be of importance as tending in some measure to exonerate Saunders. Moreover, the paper ...

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