On defendant's appeal from Bergen County Common Pleas Court.
For the appellant, Leuly & Moser (John A. Laird, of counsel).
For the respondent, Vincent J. Aikens (Milton T. Lasher, of counsel).
Before Justices Trenchard and Parker.
The opinion of the court was delivered by
PARKER, J. The case arises out of a rear-end automobile collision due, as claimed, to the presence of a cloud of smoke drifting across the road. Four persons were named as defendants; as to two, husband and wife, there was no evidence at the trial; and a discontinuance has been duly entered as against them. As to a third, Howard Mackay, the transcript of the trial shows a discontinuance agreed to as to him, and this has also been made a matter of record, leaving only the one defendant, Gertrude N. Emise. There was a verdict against Mrs. Emise in favor of the infant, and a similar verdict in favor of the mother.
The sole ground of appeal is that "the trial court erred in refusing to grant defendant's motion for a nonsuit and for a direction of a verdict."
The facts, as the jury was entitled to find them, were as follows:
On November 8th, 1934, Mrs. Emise was an abutting owner on East Palisade avenue, Englewood. Her employe, one McElroy, was burning fallen leaves, and had started a fire in the gutter in front of the Emise premises. This made a thick smoke, which drifted northerly across the road, as the jury could find. The road had a hard crown, say twenty feet wide with dirt shoulder on each side. Defendant Howard Mackay was driving his car easterly on the southerly side of the crown of the road and stopped to ask directions of McElroy, who was tending the fire. The smoke shrouded Mackay's car; and the Lambert family, driven by the father, and consisting of himself, his wife, and a young child, Germaine, came up behind, and crashed into the rear of the Mackay car. Lambert was killed; the wife and child were injured. The suit by them was against Mackay for stopping in or near the middle of the road; and against Mrs. Emise for her servant creating a smoke screen hiding the Mackay car.
The motion to nonsuit was based on the grounds of (1) no negligence in making the fire; and (2) the unlawful stoppage of the Mackay car as the proximate cause. The motion to direct was on these two grounds; and also on the "release" of Mackay as releasing the appellant also (not now argued) and as to Mrs. Lambert, that the Lambert car was hers, that her husband was driving it as her servant, and that he was guilty of contributory negligence which was imputable to her.
As to the fire itself: we think there was evidence from which the jury could find that it was negligent to build and maintain a fire causing a thick smoke which would drift across the road and obscure vision. In Davenport v. McClellan, 88 N.J.L. 653, 654, the Court of Errors and Appeals characterized a fire in the street as a nuisance.
As to the stopped Mackay car being the proximate cause, and the smoke only secondary, we consider that it was a case of two concurring causes and two tort feasors, and that ...