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Wassmer v. Public Service Electric and Gas Co.

Decided: April 21, 1939.


On appeal from a judgment of the Supreme Court.

For the plaintiffs-appellants, Michael J. Murphy and Peter J. McGinnis.

For the defendant-respondent, Henry H. Fryling, William H. Speer and Arthur C. Gillette.


The opinion of the court was delivered by

DONGES, J. William B. Wassmer, individually and as administrator ad prosequendum of his wife, Mary Wassmer, deceased, and William J. Mott and Mary A. Mott, his wife, brought suit against the Public Service Electric and Gas Company to recover for damages and injuries growing out of a collision between an automobile of the defendant and one owned and driven by Wassmer, in which Mrs. Wassmer and Mr. and Mrs. Mott were passengers.

The collision occurred on the afternoon of Sunday, June 23d, 1935, at the intersection of Hamburg Turnpike and Jackson avenue, in Wayne township, Passaic county. This is not a right-angled corner. As shown by the map, Jackson avenue does not cross the turnpike but intersects it at an angle of approximately forty-five degrees. The turnpike is a four-lane highway. Wassmer was driving his car on this highway in a generally northwest direction and desired to turn left into Jackson avenue. This required less than a right angle turn; one of about forty-five degrees. He attempted to make this crossing as two cars were approaching in the opposite direction; the defendant's car, driven by its employe Abraham Van Genderen, and one owned and operated by Dexter G. Littell. Plaintiff's car was struck first by defendant's car and then by Littell's, and thrown against a pole. Mrs. Wassmer was killed; the other plaintiffs sustained injuries. As to Wassmer, individually, the trial court ordered a nonsuit; as to Wassmer, as administrator ad prosequendum, and as to Mr. and Mrs. Mott, there was a jury verdict for the defendant. All of the plaintiffs appeal.

Plaintiffs-appellants have not printed all of the testimony taken at the trial. Of the plaintiffs' witnesses we have before us only the testimony of the draughtsman of the map in evidence and that of Mr. Wassmer. Of the defendant's witnesses only the testimony of Mr. and Mrs. Littell is printed. The evidence given by some twenty other witnesses has been omitted. Defendant-respondent served notice of objections to the state of the case, but did not bring the matter to the court's attention by way of motion to compel the printing, and did not proceed to print the matter on its own behalf. The record before us is sufficient for the determination of the questions presented.

The first point argued is that it was error to grant the motion for nonsuit as to William B. Wassmer, individually, on the ground of his contributory negligence. Wassmer testified that he was traveling on his extreme right-hand side of the road as he proceeded northwestwardly, going away from Paterson. When he reached Jackson avenue he pulled over to the left-hand lane of the two on his side of the road and came to a full stop, to allow some traffic going toward Paterson, or in the opposite direction to that which he faced, to pass the intersection. He then looked and observed that the road was clear except for a car coming over the brow of the hill, some three hundred feet away. He started to make the crossing into Jackson avenue. He reached a point about half way across the southbound portion of the road when he made another observation and saw two cars about abreast of a well situated along the roadside. This well is said to be about one hundred and five feet from the center line of Jackson avenue. Wassmer testified that the car in the lane toward the center of the road was the car he had previously seen coming over the hill. This was Littell's Buick. The other automobile, the defendant's Ford, was in the lane toward the side of the road and was passing the Buick. Both cars were going at a terrific speed. Wassmer testified that he proceeded to a point where his front wheels were just into Jackson avenue when the defendant's car struck his car at about the center of the front door, turning his car around and forcing it back into the path of the Littell Buick. Littell's car struck plaintiff's and threw it against the pole.

As stated, we do not have the benefit of the testimony of the other witnesses, but we can pass upon the propriety of the nonsuit in the light of Wassmer's testimony. We do not understand that there was anything in the evidence omitted that would entirely destroy Wassmer's testimony. It stands as competent evidence that should have gone to the jury, unless it shows contributory negligence as a matter of law.

In dealing with the motion, the trial court said, in part:

"At the time of his testifying I made a note that after starting he did not again look until he was astride of the two Paterson-bound lanes, and then he saw the cars racing at the well. * * * But he stopped, came to a standstill, to let some cars pass him which were going toward Paterson. So far as where he stopped is concerned, he is entitled to the inference that he complied with law. On the question of whether he complied with the rules of law as laid down by our courts in the various cases discussed, wherein he was charged with the duty of seeking an opportune time and exercising a great degree of care, which is reasonable care under the circumstances presented to him, can we reasonably infer that he did exercise such care when he says that from a standing position he looked and saw a car coming over the brow of the hill, the brow of the hill being placed at approximately three hundred feet from where he then was? There is no testimony that he did or could at that time observe the speed of that car. Nevertheless, he started up, with a 1928 Chevrolet -- and this was in the middle of June -- started across the highway and had his car across both Paterson-bound lanes before he made any further observation. He says he was looking ahead, he was watching where he was driving. * * * He merely looked ahead. Was that an exercise of that degree of care which was imposed upon him under the circumstances? Seeing a car coming over the brow of the hill, he proceeded to cross its path, starting from a standing position, at a speed of about five miles an hour, knowing that he had to travel a distance, as shown on the map of some forty feet, I would say, thirty to forty feet, in order to clear this other traffic. He did not accelerate his speed at any time beyond the five or six miles an hour, but at this slow speed crossed in the face of oncoming traffic which he had seen but had not determined the speed of. * * * Normally you would say that a person doesn't have to wait for a car that is three hundred feet away, but I think a reasonably prudent person would wait until he could tell whether that car was coming eighty miles per hour before crossing in front of it."

We are of the opinion that this statement of the situation clearly demonstrates the presence of a question for the jury on the subject of contributory negligence. Wassmer saw a car coming about three hundred feet away when he had to cross some thirty to forty feet to get into Jackson avenue. He was entitled to rely upon observance of the law by the driver of the other car with respect to speed. As was said in Tischler v. Steinholtz, 99 N.J.L. 149: "The duty to exercise reasonable care between persons using the highway is mutual, and each person may assume that others traveling on the highway will comply with this obligation. Hence the decedent had a right to assume that the driver of the automobile would exercise proper caution in respect to speed and control in approaching the crossing." In the case at bar, taking the plaintiff's version of the situation as true, there would have been no collision if the law with respect to speed had been observed, because Littell's car was then three hundred feet away and defendant's car had not yet come into view and must, therefore, have been still further away. While it has been held that one intending to make a left-hand turn upon the highway must use a high degree of care to select an opportune time, a left-hand turn is not an unlawful maneuver, nor is it such an extraordinary one that persons traveling upon the highway are not required to give others the opportunity to make such turns. When Wassmer was at the center of the road he made an observation. When he was half way across he made another. It was apparently then too late to do anything to avoid a collision. The trial court seems to have taken the view that it was Wassmer's duty to watch this on-coming traffic continuously or a least to have made a second observation sooner than he did. We think no such duty appears as a matter of law, under the circumstances presented by the evidence here. Under the proofs the jury might have found him guilty of contributory negligence as a matter of fact, but it was a jury question and not one of law for the court.

The next point for consideration concerns the sustaining of objections to a series of questions propounded to Mr. and Mrs. Littell on cross-examination. It is not necessary to deal with them all individually since they were similar in import and were asked for the same purpose, namely, with a view to attacking the credibility of these witnesses. Mr. and Mrs. Littell, who are residents of the State of New York, brought suit in the United States District Court for the District of New Jersey to recover for personal injuries and property damage sustained by them in this accident. They named as defendants Mr. Wassmer, Public Service Electric and Gas Company and Abraham Van Genderen, driver of the Public Service car, and charged negligence on the part of all defendants. That case was still pending and had not yet been tried at the time of the trial of this case at the Circuit. These witnesses on direct examination gave testimony which was generally favorable to the defendant-respondent. They contradicted Wassmer with respect to the relative positions of the Ford and Buick cars, saying that the Ford was in the lane near the center of the road and the Buick in the right-hand lane. They also testified to a moderate speed upon the part of their car and the Ford of the respondent.

In this situation, counsel for the plaintiffs-appellants desired to attack the credibility of the testimony given on direct examination by means of the complaint filed by these witnesses in the federal court, which complaint was verified by affidavit of Mr. and Mrs. Littell. ...

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