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Wilcox v. Christian and Missionary Alliance

Decided: April 25, 1940.

CHARLES HENRY WILCOX, PLAINTIFF-RESPONDENT,
v.
CHRISTIAN AND MISSIONARY ALLIANCE, A CORPORATION OF THE STATE OF NEW YORK, DOING BUSINESS AS "MISSIONARY INSTITUTE" AND NELSON HAMILTON, DEFENDANTS-APPELLANTS



On appeal from the Supreme Court.

For the plaintiff-respondent, Abram A. Lebson.

For the defendants-appellants, Collins & Corbin (Edward A. Markley and Howard F. McIntyre, of counsel).

Brogan

The opinion of the court was delivered by

BROGAN, CHIEF JUSTICE. In this case, which arose out of an automobile collision, the defendants appeal from a judgment entered for the plaintiff upon a verdict of the jury. The grounds of appeal argued in the appellants' brief are seven in number. They resolve themselves into two classes -- (a) that the court fell into reversible error in rejecting the defendant's several requests to charge and (b) that the charge of the court to the jury was erroneous in several particulars.

From the testimony concerning the happening, which resulted in serious personal injuries to the plaintiff, it appears that the plaintiff was driving his automobile in an easterly direction on a side road in Alpine, New Jersey, whence he turned left on a main highway along the Hudson river, known as Route 9-W, to proceed to the north; the defendants' bus, under the control and operation of the defendant Hamilton, was proceeding along the said main highway, in a southerly direction. It was nine o'clock in the morning and patches of fog lessened visibility in the lower sections of this vicinity so much so that plaintiff turned on his automobile lights. The lights on the defendants' bus had not been turned on. The testimony further is that before entering the main highway to turn northward the plaintiff brought his car to a standstill, then started up again, drove upon the highway and began to make a left-hand turn. He saw the defendants' bus fifty to sixty feet away "coming fast," and testified that it was more in the east than in the west lane of traffic where

normally it should have been. This is the factual situation and the relative position of the parties at that point, as we reconstruct it from the photographs and the testimony. No map is printed in the state of case although in the record it appears that several witnesses testified from a map which had been received in evidence.

We proceed to consider the grounds of appeal.

(1) It is said that the court erred in rejecting defendant's seventh request to charge which reads as follows:

"The mere happening of an accident is no evidence of negligence and if you find that this was an unavoidable accident then your verdict must be in favor of the defendants, a verdict of no cause of action."

The rejection of this request was not error. The request contains two distinct legal propositions, one affirmative and general in character, the other possible and particular. The first was expressly charged. The second was not. But the exception is directed to the court's refusal to charge the request in toto, and clearly the request, as a whole, was not refused. Therefore the exception, as a ground for reversal, is in part contrary to fact. In passing, we point out that it is to be preferred that a request to charge embody but a single proposition. In other jurisdictions such practice is ordained by statute. (Compare Kast v. Turley, 149 A. 673; Nicewicz v. Nicewicz, 132 Id. 399 (Conn.); Smirnoff v. McNerney, 152 Id. 399.) And in our jurisdiction a request to charge containing several propositions is weighed not by its strength but by its weakness since, if unsound in any particular, it may be rejected in its entirety. Schreiber v. Public Service Railway Co., 89 N.J.L. 183; Kemp v. Bright, 104 Id. 529; Schlosser v. Goldberg, 123 Id. 470. But aside from this, the burden of the charge was that to fix liability on the defendants the jury, in considering the proofs, had to be satisfied of the defendants' negligence ...


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