On appeal from the Supreme Court.
For the plaintiff-appellant, Heine, Peer, Laird & Mahr.
For the defendant-respondent, Colie & Schenck.
The opinion of the court was delivered by
WELLS, J. This is an appeal from a judgment of the Supreme Court, Essex Circuit, based on the granting of a
motion for nonsuit in favor of the defendant-respondent, and against the plaintiff-appellant.
During the noon hour on October 2d, 1936, the defendant, Diffany, was driving his car in a northerly direction on Plane street in Newark, and made a left-hand turn westerly into Academy street. At the same time the plaintiff's decedent, Church, was walking in a southerly direction on the west side of Plane street, and was about to cross the intersection of Plane street and Academy street. There were traffic lights at this intersection.
The testimony indicates that in some way Church and the Diffany car came in contact at a point on the right side of the car where the spare tire was located, and Church fell backwards into the street. Diffany stopped his car with the rear just over the crosswalk, and Church walked in back of it and sat on the running board of another car parked on the south side of Academy street. Medical testimony shows that Church sustained a fractured hip and that the trauma which produced the fracture also produced other internal conditions which led to his death.
There were apparently no witnesses to the accident other than the defendant, Diffany, and the decedent, Church. At the trial the plaintiff's proof of negligence was based entirely on statements made by Diffany to certain police officers, and the observations of the officers and one Thomas Reilly, each of whom arrived on the scene some time subsequent to the accident. At the close of the plaintiff's case a motion for nonsuit was made and granted, resulting in the judgment from which this appeal is taken.
The plaintiff-appellant relies generally on two grounds of appeal: (1) that the court erred in sustaining objections to certain questions asked on direct examination; and (2) that the court erred in granting the motion for nonsuit.
During the course of examining the witness Reed, a police officer, the plaintiff's counsel asked what the decedent had said in the presence of the defendant, Diffany. This was objected to and the objection sustained. Despite the statement in the plaintiff's grounds of appeal that an ...