On appeal from a judgment of the Passaic County Court of Common Pleas.
For the appellants, Charles A. Rooney.
For the respondent, Cecil Hart and Charles C. Stalter.
Before Brogan, Chief Justice, and Justices Donges and Porter.
The opinion of the court was delivered by
DONGES, J. This is an appeal from a judgment of the Passaic County Court of Common Pleas entered upon the verdict of a jury in favor of the plaintiff. Plaintiff brought suit as administratrix ad prosequendum of the estate of her husband, Donald McCrea Eichelberger, who met his death in a collision between an automobile operated by him and a bus owned by the defendant Inter-City Transportation Co., Inc., and operated by the defendant John L. Grove. The accident occurred on April 9th, 1938, at four-thirty P.M., on State Highway Route No. 4 in Paramus. This road is a four-lane highway with white lines marking the lanes. Decedent was proceeding in an easterly direction in the eastbound lane nearer the center line of the road, and the defendant's bus was proceeding westwardly in the westbound lane nearer the center line of the road. The contention of the plaintiff at the trial was that the bus swerved across the center line into the lane in which decedent was approaching and struck his car. The
defendants on the other hand contended that decedent swerved across the center line in front of the bus, thus causing the collision. There was a head-on collision of considerable force and Eichelberger was killed. A dispute of fact was raised by the evidence as to where the collision occurred, whether over the center line in the eastbound lane or over the center line of the westbound lane. A jury question was thus created and the appellant does not claim otherwise.
The first point argued is that the trial court erred in refusing to permit the defendants to account for the absence of certain witnesses. There were thirteen passengers on defendant's bus at the time of the accident and six of them testified for the defendants. Defendants offered a witness to testify as to the reasons the other seven were not produced and the exclusion of this testimony is the ground of appeal upon which this point is based. It is true that under certain circumstances the failure to produce a witness who is shown by the evidence adduced to be likely to have pertinent knowledge of the transaction under scrutiny may create an inference that the witness was not produced because his testimony would be unfavorable to the party. Drennan v. Housman, 7 N.J. Mis. R. 91. And it may be taken as established that under such circumstances a party may explain his inability to produce such a witness. State v. Raymond, 53 N.J.L. 260. But under the circumstances of the instant case, we see no harm to the appellants. The offer of this testimony was made in the presence of the jury and at that time the attorney for the plaintiff expressly waived any right to comment upon the failure to produce the other passengers, saying that he would confine himself to comment upon the testimony of those produced. He made the further statement that he likewise had endeavored to locate some of the bus passengers and had been unsuccessful. It is not claimed that any point was made by the plaintiff at the trial of such failure to produce the witnesses or explain their absence. The trial judge did not charge the jury that they could or should draw any inferences from the absence of the witnesses. It did not appear from the evidence that any of the missing passengers had any peculiar knowledge that would throw light on the accident.
They were merely passengers and some of the passengers who did testify saw little or nothing that was pertinent to the issue. A reading of the record indicates that this was not an element in the case at all and we fail to see anything to indicate harm to the appellants on this ground.
The next point is that it was error to charge as follows:
"Now, then, as a practical matter, it was admitted during the course of the trial that Mr. Eichelberger, the deceased, came to his death as a result of this accident; so that in your determination you merely have to determine whether or not there was any negligence on the part of the bus operator, because if there was, then you may take it for ...