On writ of error to the Essex County Court of Quarter Sessions.
For the defendant in error, William A. Wachenfeld, prosecutor of the pleas; C. William Caruso, special assistant prosecutor.
For the plaintiff in error, Edward R. McGlynn (Joseph Weintraub, on the brief).
Before Brogan, Chief Justice, and Justices Parker and Perskie.
The opinion of the court was delivered by
BROGAN, CHIEF JUSTICE. Plaintiff in error was convicted of causing the death of Caspar Kurak by driving a motor
vehicle "carelessly and heedlessly in willful or wanton disregard of the rights and safety of others," &c. R.S. 2:138-9. The deceased, a pedestrian, was struck by an automobile operated by plaintiff in error on Valley street in the City or Orange on November 1st, 1939, at about two o'clock in the morning. No eye witness to the accident was produced. Of necessity, the state's evidence was largely circumstantial in character. There had been rain for three or four days preceding the night in question, in fact sleet and rain, but the road, according to the testimony of the defendant himself, was "pretty near dry but not quite. It was a pretty bad night." But apparently there had been a drizzling rain earlier that night, although at the time of the accident there was no occasion for the defendant to use "his windshield wiper" and the visibility, he says, was good, and his automobile lights "were on."
The brief of the plaintiff in error concedes that the evidence produced by the state, especially certain exhibits -- pieces of glass from a smashed headlight and portions of the grille, "which matched the damage to the defendant's vehicle * * * was sufficient to justify a finding that the defendant's car struck the deceased."
The deceased, aged sixty-two, was crossing the public road, Valley street, presumably to reach his home located on said street. He had started from the easterly to the westerly side of the roadway. The defendant was traveling south on Valley street and testified that nothing collided with his automobile. Mr. Kurak was found in the center of the roadway, badly injured; both legs were broken, the bones being splintered; six ribs on his right side had been fractured; the skull was not fractured but the surface of the brain showed a "generalized hemorrhage of the traumatic type." The deceased had left a tavern on Valley street, conducted by the witness, John Peeles, at about one-fifty-five in the morning. The plaintiff in error had been engaged in a shuffleboard match in Orange and had been in the company of his brother-in-law and a relative of the latter. After the match he went to a tavern where he remained until one-forty-five A.M. or thereabouts. At this juncture it is only fair to say there was no
evidence at all that either the deceased or the plaintiff in error was under the influence of liquor.
The defendant concedes that he went along Valley street and passed the exact spot where Kurak was later found. At the time of the unfortunate happening one witness, a young lady who lived at 543 Valley street and whose family occupied an apartment on the third floor of the house, heard a "crash," to use her own words, although her bedroom was the third room from the front of the building. She had just retired for the night when, hearing this disturbance, she called her mother and the two of them went to the front room of the apartment, looked through the window and saw a black automobile, standing on the street below, without lights, but with the motor running. The body of the decedent was not visible to the witness at that time but shortly thereafter the car was driven off and it was then that she saw the body of a man lying in the roadway. A little ...