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Abraham v. Wilson & Co.

Decided: January 13, 1939.

HANNAH ABRAHAM AND HENRY ABRAHAM, APPELLANTS,
v.
WILSON & COMPANY ET AL., RESPONDENTS



On appeal from the Supreme Court, Essex Circuit.

For the appellants, Harry Green.

For the respondents, Colie & Schenck (Frederic R. Colie, of counsel).

Parker

The opinion of the court was delivered by

PARKER, J. This is plaintiff's appeal from an adverse judgment in an accident case. The suit arose out of a collision in which a motor truck driven by an employe of the defendants and an automobile driven by the plaintiff Henry Abraham were involved. The female plaintiff was a passenger in the automobile. The grounds of appeal are all somewhat***

technical in character, and we are of the opinion that there is no substantial merit in any of them, except the third. However, it seems advisable to notice them all.

The first ground of appeal reads as follows:

"The trial court erred in refusing to permit a question of the jurors as to whether they were represented by counsel in this action or were clients of such counsel."

A sufficient answer to this is, that the alleged question nowhere appears in the record. All that we have is an exception substantially in the language of the ground of appeal, but there is nothing either in the stenographer's transcript or certified by the court under the old practice (Kargman v. Carlo, 85 N.J.L. 632, 635, 636; Lowenstein v. Lohman, 109 Id. 215), to show any judicial action whatever.

The second ground of appeal is that the trial court erred in overruling the question to the witness Hannah Abraham: "When you saw the truck loom up in front of your car was anything said by you?"

An examination of the transcript shows that this question was answered as follows: A. I said, 'look out for the truck.'" After the question was answered, counsel for the defense objected, the objection was sustained and plaintiff noted an exception. However, the answer was not struck out and there was no application to have it struck out, and it would seem that consequently it remained before the jury. This makes it unnecessary to consider the question whether, on the merits, the ruling that the question was improper was a correct ruling. It follows that no harmful error is shown.

The fourth point, which we take up out of its numerical order, is that the trial court erred in charging the jury as requested by the defendants that "while you are not to decide the case upon the number of witnesses upon one side or the other, yet where the witnesses have all the same chances for observation and are believed to be of equal credibility, ...


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