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Rizio v. Public Service Electric and Gas Co.

Decided: January 9, 1942.

JAMES RIZIO, JR., AN INFANT BY HIS NEXT FRIEND, JAMES RIZIO, SR., AND JAMES RIZIO, SR., INDIVIDUALLY, PLAINTIFFS-RESPONDENTS,
v.
PUBLIC SERVICE ELECTRIC AND GAS COMPANY, DEFENDANT-APPELLANT



On appeal from the Supreme Court, Passaic County.

For the appellant, Henry H. Fryling (William H. Speer and Richard Fryling, of counsel).

For the respondents, Vincent C. Duffy (Joseph G. Sproviere, of counsel).

Perskie

The opinion of the court was delivered by

PERSKIE, J. The question for decision in this case is whether the trial judge erred in denying defendant's motions for a nonsuit or a directed verdict.

The action is in tort and arises out of automobile accident which occurred during the afternoon of April 10th, 1939, at the intersection of Dover Street and Twentieth Avenue, Paterson,

New Jersey. The infant plaintiff, by his next friend, was awarded $5,000 and his father was awarded $1,000. On a rule to show cause why these verdicts should not be reduced on the ground that they were excessive, the trial judge reduced them to $2,500 and $500, respectively. As so reduced, they were accepted and judgment was entered accordingly. Defendant challenges the propriety of that judgment.

Defendant's points in support of its contention that its in support of its contention that its motions for a nonsuit and a directed verdict should have been granted are that there was no proof of negligence on its part which was the proximate cause of the accident, and that "the infant plaintiff was guilty of negligence which was the sole cause, or which at least * * * contributed to the accident * * *."

First: We think that the proofs submitted and proper inferences to be deduced therefrom justified submitting to the jury the question of defendant's negligence. Notwithstanding defendant's proofs that the infant plaintiff ran or darted in the pathway of its car, and that the accident was not caused by any actionable negligence on its part, it was open to the jury to find that defendant's car was being driven at an excessive rate of speed, namely, 20 to 30 miles an hour (N.J.S.A. 39:4-98(b); that unlike in Claypoole v. Motor Finance Corp., 125 N.J.L. 442; 15 A.2d 794, speed here was a factor under the issues and circumstances exhibited; that no horn was blown or other signal of approach given; and that defendant failed to heed the infant's statutory right of way while using the cross-walk (N.J.S.A. 39:4-36; Volpe v. Perruzzi, 122 N.J.L. 57; 3 A.2d 892; affirmed, 123 N.J.L. 323; 8 A.2d 580). Additionally, the facts that the impact of the collision caused a dent in the left grille work of the car and caused the infant to be thrown a distance of twenty-five feet and that the skid marks of the car extended some ten feet, together with all other proofs, justified the submission of the case to the jury. There was no error on this score.

Second: Nor do we think that the proofs submitted established the alleged sole or contributing negligence of the infant plaintiff.

The plaintiff was 10 years and 10 months old at the time of the accident. He was a pupil in the sixth grade of the public schools of Paterson. There is no claim that he was not blessed with that degree of ...


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