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Mancino v. Urbaniak

Decided: June 29, 1938.

FRANK MANCINO, BY HIS NEXT FRIEND, ANTONIO MANCINO, AND ANTONIO MANCINO, PLAINTIFFS-RESPONDENTS,
v.
S. FRANK URBANIAK, DEFENDANT-APPELLANT



On appeal from the Mercer County Court of Common Pleas.

For the defendant-appellant, Andrew M. Cella.

For the plaintiffs-respondents, George H. Bohlinger, Jr. (Walter D. Cougle, of counsel).

Before Brogan, Chief Justice, and Justices Trenchard and Parker.

Trenchard

The opinion of the court was delivered by

TRENCHARD, J. This suit was instituted for the recovery of damages for injuries to Frank Mancino, an infant, caused by his being struck by the automobile driven by the defendant, and by the infant's father for his consequential damages; and the trial resulted in a verdict and judgment for the plaintiffs, from which the defendant appeals.

The evidence at the trial, though somewhat in dispute, tended to show, and the jury was justified in finding, among other things, the following matters of fact:

The infant plaintiff at the time of the accident was seven years and three months old. He, with some other children, had been riding on the rear of a milk wagon on a city street in Trenton, and the driver ordered the children from the wagon. The infant plaintiff ran toward the west curb of the street, and at or near the curb he stopped to go to his home which was on the other side of the street. When he started for his home the milk wagon was one block away. The street which he had to cross to get to his home was in a "crowded" residential section of the city. He looked to his left (the direction from which defendant's automobile approached) before he started to cross, but did not see any automobile. After he had passed completely in front of defendant's automobile, he was struck by the mudguard on his far side of the car, and was thus injured. According to the plaintiffs' evidence the defendant's automobile was running at a speed of from thirty-five to forty-five miles per hour.

The defendant first argues that the court erred in refusing to grant a nonsuit. Not so. Where, as here, the plaintiffs' evidence tended to show that the defendant was driving his automobile through a "crowded" street in a residential section of the city at a speed of from thirty-five to forty-five miles

an hour when he struck the plaintiff, an infant seven years and three months old, it was not error to refuse to nonsuit upon the allegation that there was no evidence of negligence upon the part of the defendant.

Defendant next says that there was error in refusing to direct a verdict for the defendant upon the ground (1) that plaintiff had shown no evidence of negligence, and (2) upon the ground that the ...


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