On appeal from the Supreme Court.
For the plaintiff-respondent, George L. Burton (Baruch S. Seidman, of counsel).
For the defendant-appellant, Green & Green (David Green, of counsel).
The opinion of the court was delivered by
PORTER, J. The defendant appeals from a judgment rendered against him in an action in which he is charged with the negligent operation of an automobile which resulted in injuries and death to Harold William Hargrave. The suit is by the administratrix ad prosequendum and as general administratrix of the estate of the deceased for the recovery of damages for the death and also for pain and suffering and for medical and hospital expenses.
The case was tried in the Supreme Court, Middlesex Circuit, before Judge Oliphant and a jury and resulted in a verdict for the plaintiff for $5,000 for the death and $1,000 for the pain, suffering and expenses.
It is the contention of the appellant that the trial court erred in not granting a nonsuit or directing a verdict in his favor and in not charging the jury as requested.
We conclude, for reasons to be stated, that there were questions of fact in dispute which required the submission of the case to the jury and that the charge as a whole was free from reversible error and that therefore the judgment should be affirmed.
Hargrave, the deceased, was employed as an automobile truck driver by a large firm having its factory and place of business on both sides of Passaic Avenue, Kearny. Sometime after seven o'clock in the evening of February 4th, 1939, he drove out of the plant through a gate and turned on Passaic Avenue in a southerly direction. He stopped the truck on the westerly side of the street at the curb about 100 yards from the gate through which he had left the premises. His work occasioned him to cross the street at the place where he had stopped in order to pick up some mail. While crossing, so it is claimed, he was struck by an automobile being negligently operated by the appellant, it being driven at a high
rate of speed and without lights. It was after dark and the immediate vicinity was very dark.
McCartin, the night watchman at the gate, who had opened it for the deceased, testified that shortly after doing so as he was about to cross Passaic Avenue he saw an automobile going south pass at a high rate of speed, estimated by him at about sixty miles per hour, and without lights. He heard no noise of a collision but as he was walking across the street he heard groans and following the sounds he found deceased lying in the street on the east side partially across the curb and about twenty-five to thirty feet beyond and opposite to where the truck was parked. The lights on the truck were lighted. He immediately looked for help and found Casper, a fellow employee, the garage foreman, who went with him to the injured man who was then taken to the hospital.
Casper testified that the lights on the truck were lit and the door on the right side was open and the left door closed. He says that he returned to the scene of the accident about six hours later to make further observations and then found in the street about twenty-five feet to the south of where the injured man had been lying ...