On defendant's appeal from the Hudson Common Pleas.
For the appellant, John F. Ryan.
For the respondent, Edward A. Markley (James B. Emory and Dominick J. Marchitto, on the brief).
Before Brogan, Chief Justice, and Justices Parker and Perskie.
The opinion of the court was delivered by
PARKER, J. The case arose out of an automobile accident in the State of Florida. Defendant was driver of the car, and plaintiff the sole passenger therein by invitation of the defendant. It may be inferred that at that time they were formally or informally engaged to be married, though this is not material to the case. They had gone together in the car to Florida, traveling together in the daytime and each
staying at a different place every night; and after their stay in Florida, the two were returning to the north, the plaintiff's home being at Jersey City in this state.
The evidence shows that in the locality where the accident occurred the road was unfenced and that cattle were pastured on both sides of it and were free to move from one side to the other without interference; that defendant had been warned of these conditions; that about a quarter of a mile south of the accident there was a sign on the shoulder of the road which read "Warning, Cattle Ahead;" that the cattle were plainly visible, particularly on the right side of the road where the automobile was running. The road, according to the testimony, was level, the paved portion being about twenty feet wide, with two or three feet of dirt shoulder on each side. The date was June 30th, 1938, about six o'clock in the evening, and, according to the testimony, their destination was about seventy miles away.
As the plaintiff testified, and as the jury were entitled to find, while the defendant was driving at nearly sixty miles an hour with the cows in sight ahead, the plaintiff asked him to slow up the car. She testified that he never had driven so fast before. According to her testimony, defendant answered that he could make it, and as they approached the group of cows one of them started to cross from the right to the left; plaintiff again asked that defendant stop the car, he again refused, swerved to the left side of the road, the wheels went on the left shoulder, defendant then swerved to the right and the wheels went to the right shoulder; there was a second swerve to the left, the car upset and the plaintiff was severely injured.
At the time of the accident there was in effect a Florida statute dating from 1937 which was pleaded in the complaint and admitted in the answer. The pertinent part of the statute reads as follows:
"That no person, transported by the owner or operator of a motor vehicle as his guest or passenger, without payment for such transportation, shall have a cause of action for damages against such owner or operator for injury, death or loss, in ...