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Cleary v. City of Camden

Decided: May 11, 1937.

CATHERINE E. CLEARY, ADMINISTRATRIX, ETC., OF JOHN J. CLEARY, DECEASED, PLAINTIFF-APPELLEE,
v.
CITY OF CAMDEN ET AL., DEFENDANTS; SOUTH JERSEY PORT DISTRICT, TRADING AS CAMDEN MARINE TERMINALS, DEFENDANT-APPELLANT



On appeal from the Camden County Court of Common Pleas.

For the appellant, T. Harry Rowland and D. Trueman Stackhouse.

For the appellee, Walter S. Keown and George D. Rothermel.

Before Brogan, Chief Justice, and Justices Case and Perskie.

Perskie

The opinion of the court was delivered by

PERSKIE, J. South Jersey Port District, trading as Camden Marine Terminals, one of the three originally named defendants below, appeals from a judgment entered upon a jury verdict in the Camden County Court of Common Pleas (to which court this cause was referred from the Camden County Circuit Court by order of Mr. Justice Lloyd) in the sum of $30,000 as administratrix ad prosequendum, and in the further sum of $1,000 as general administratrix of her husband's estate.

On a rule to show cause why the verdict should not be set aside, and a new trial granted, three grounds were set down. They were (1) that the verdict was contrary to the weight of the evidence, (2) that the verdict was excessive, and (3) that the verdict was the result of sympathy, passion or prejudice on the part of the jury. The rule contained the express proviso that exceptions taken by defendant at the trial, including the court's refusal to nonsuit and to direct a verdict, be reserved. The only ground argued, on the return of the rule, was that the verdict was excessive. The court concluded that the verdict was excessive and accordingly reduced it to $18,000. As so reduced it was accepted by the plaintiff. The disposition of the rule on the sole point (excessive verdict) is not, as is urged, res judicata of the other two points. While the latter points were assigned, they were not only not argued but were specifically reserved. Thus they were, in effect, exscinded from the grounds assigned in the rule.

As indicated, there were two other defendants. They were Louis, Thomas, Frank and John Bantivoglio, co-partners and trading as N. Bantivoglio & Sons, and the city of Camden.

It appears that plaintiff's intestate was a longshoreman and was employed by the Luckenbach Steamship Company, Incorporated. A ship of the latter was docked at the foot of Beckett street, Camden, N.J., where the defendant operated the pier, for the purpose of taking on freight. The freight consisted of bales of pressed cardboard or fiber board, each being about "four feet ten inches long and about three feet ten inches wide and about nine inches thick," or "five feet by two and one-half feet by nine inches," and each weighing between two hundred and twenty-five and two hundred and fifty pounds. It is sufficient presently to observe that these bales were stacked in piles on the floor of the pier, one on top of the other (about six or eight in number), and each pile consisted of about eight or nine of such rows. There was a passageway (the width of which is sharply in dispute, varying from three to six inches and from four to six feet) between each pile.

On December 18th, 1931, plaintiff's husband and three co-employes were engaged in placing bales from one of these piles upon a truck which in turn was conveyed by a tractor to the ship. As plaintiff's intestate bent down to help place the last bale of the pile which was then being placed upon the truck, as aforesaid, bales (varying in number between three to thirty-five) of an immediate adjoining pile (some six or eight feet high) fell down upon him, crushed him, and as a result of the injuries thus sustained he died on January 10th, 1932.

At the end of plaintiff's proof each defendant made a motion for a nonsuit. The motion so made in behalf of N. Bantivoglio & Sons was granted on the ground of lack of proof of actionable negligence on their part. The motion so made in behalf of the city of Camden was denied. Later the city offered proof tending to indicate that it had no interest in either the management or operation of the pier. The court, upon ascertaining that no further proof would be offered

against the city entertained, before the end of the case, with the consent of counsel for all parties, a motion made for the city for a directed verdict in its favor, and granted same. Defendant's motion to nonsuit, based on three grounds, (1) that it was engaged in the exercise of a governmental function, (2) that there was no proof of any negligence on its part and (3) that plaintiff was guilty of contributory negligence, was denied. The denial was rested on the ground that the doctrine of res ipsa loquitur applied. At the conclusion of the entire case defendant's motion for a directed verdict was denied because the court was still of the opinion that the proofs showed that defendant had some connection with the piling of the bales involved in the accident, and, therefore, concluded to and did submit the issue to the jury for its determination. The verdict of the jury has already been stated. It is the judgment based on that verdict, as reduced, that is here challenged.

Defendant sets down ninety-three grounds of appeal. Grounds 1 to 6, inclusive, and grounds 8 to 76, inclusive, relating to the alleged erroneous rulings upon the admission or rejection of evidence, are not argued, and are concededly abandoned. Grounds 78, 84, 85, 86, 87, 88, 89 and 92, relating to exceptions to the court's charge, are also not argued and they, too, are admittedly abandoned. The remaining and principal grounds of this appeal relate to the court's refusal to nonsuit and to direct a verdict, and alleged errors in the court's charge.

Generally stated, the common complaint underlying practically all of the grounds argued is that the court erroneously invoked and applied the doctrine of res ipsa loquitur.

More specifically stated, defendant's complaint, as we understand it, is that the court erroneously submitted the cause to the jury upon two irreconcilable theories. First, upon the theory of the existence of actionable negligence. This we will treat in our disposition of the factual situation presented at the time of motions to nonsuit and to direct a verdict. Second, upon the theory ...


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