On appeal from a judgment of the Essex County Circuit Court.
For the plaintiffs-appellants, Benjamin Gittleman and Benjamin M. Ratner.
For the defendants-respondents, Cox & Walburg.
The opinion of the court was delivered by
DONGES, J. This is an appeal of the plaintiffs from a judgment of nonsuit in two cases consolidated for the purpose of trial and also for appeal, the one being against Alvin A. Bell alone and the other against Max Liveright and Alvin A. Bell.
At the trial it appeared that the infant plaintiff's case, as exhibited by her own testimony, was that on February 17th, 1934, she had attended a motion picture show on Belmont avenue, Newark, at a theatre on the westerly side of that street, between Eighteenth avenue and Rose street; that she was an infant fourteen years of age; that, at four o'clock in the afternoon of that day, she came out of the theatre and
desired to cross to her home which was slightly to the right on the easterly side of Belmont avenue; she testified: "I went to the end of the sidewalk and looked up and down. There was a stop light on Eighteenth avenue. I looked up and down the street; there was no car in sight. I started to cross the street and come to the first car tracks; I looked again and there was no car in sight until I come to the last car track; then I seen the car coming eight houses away." Her testimony further disclosed that when she was at the last or easterly rail she concluded that she could cross in safety, so she accelerated her pace and proceeded, at the same time veering slightly to her right in order to pass between cars parked at the curb on the east side of the street; that she took several steps and was struck at or near the middle of the roadway between the easterly rail and the easterly curb by the right front of the automobile owned by defendant Liveright and operated by defendant Bell. There was testimony that there was no signal by horn, that the automobile was being operated at excessive speed; that Bell said he saw plaintiff in the middle of the street when he was a considerable distance away and assumed she would stop and did nothing to slacken his speed until about twelve feet from her, when he applied the brakes; that the car skidded on the slippery street and he struck the plaintiff and dragged her about eighteen feet.
The trial judge held that the girl was guilty of contributory negligence as a matter of law, and directed a nonsuit.
In this we think the learned trial judge erred. Without regard to the girl's age, it would appear that the factual situation outlined above, while not free of contradiction, would have justified the jury, if they saw fit, in finding that contributory negligence was not present. Unless such contributory negligence clearly appeared on plaintiff's case, it was a matter of affirmative defense, and a nonsuit would not be justified.
The age of the infant plaintiff must also be taken into consideration in determining whether she was guilty of contributory negligence. The trial judge recognized this, but
he was apparently impressed and influenced by the development and intelligence of the plaintiff, as he said "this infant plaintiff at the time of the accident was fourteen years of age, well advanced in ...