On appeal from the Supreme Court, Hudson Circuit.
For the appellants, Meehan Brothers (Thomas F. Meehan, of counsel).
For the respondents, Henry H. Fryling (William H. Speer and Arthur C. Gillette, of counsel).
The opinion of the court was delivered by
PERSKIE, J. The single question requiring decision is whether the dismissal by the trial judge of the rule to show cause why the jury verdict in favor of defendants, in each case, should not be set aside and a new trial granted, constitutes an abuse of discretion.
On March 11th, 1939, Louis Kalstad was driving his automobile in a northerly direction along boulevard east in Weehawken, New Jersey. The boulevard was very slippery; it was covered with snow, sleet and ice. As he was approaching Fulton Street the fuel pump of his car became out of order and Kalstad drove his car to the easterly curb of the boulevard and stopped. About 25 or 30 feet in back of Kalstad's car was the parked car of one Fred Pagel. While Kalstad was in the back of his car to push it to a nearby gas station for repair and while Chiesa, who was a passenger in the car, had gotten out of the car to help Kalstad, the bus of the Public Service Co-ordinated Transport skidded and struck the Pagel car which in turn struck Kalstad, his car, and Chiesa, and caused the injuries for which Chiesa and Kalstad sought their respective damages. Chiesa had attained his majority at the time of trial and the pleadings were amended accordingly. By consent of counsel, the cases were, for the sake of convenience, tried together. Otherwise, the record submitted treats each case separately. There was a nonsuit as to Pagel and there is no complaint on that score.
In support of their charge that defendant's negligence was the proximate cause of the accident, plaintiffs, generally
stated, offered proofs that defendant's bus was operated by its driver Reichardt at an excessive rate of speed, that no warning of the approach of the bus was given, and that the tires on the wheels of the bus were not equipped with skid chains.
Defendants, on the other hand, denied liability. In support of their denial, proofs were offered, again generally stated, that the bus was operated at a very moderate rate of speed, that the brakes of the bus suddenly locked thus locking the wheels of the bus, that the slippery condition of the boulevard was the sole cause of the accident and that plaintiffs were guilty of contributory negligence. In other words, defendants claimed that the accident was unavoidable on their part.
In this posture of the proofs, it was, of course, the duty of the trial judge to submit the case to the jury for its consideration and determination. He did so. His charge was accurate, fair and comprehensive. It was free from objection on the part of the plaintiffs. The jury, in the exercise of its sole prerogative, returned a verdict in favor of defendants in each case.
On application, the trial judge allowed each plaintiff a rule to show cause why the verdict should not be set aside and a new trial granted. Among the same ten reasons assigned by each plaintiff, none was exscinded (Cleary v. Camden, 118 N.J.L. 215; 192 A. 29; affirmed, 119 N.J.L. 387; 196 A. 455), were (1) that the verdict was against the weight of the evidence, and (2) that the trial judge erroneously extended the scope of the cross-examination of witness Carney and the direct examination of the witness Martin relating to allegedly contradictory statements made by witness Carney as to the cause of the accident.
After hearing, the trial judge discharged each rule. A judgment in each case was entered accordingly. Plaintiffs appeal on the sole ground that the trial judge abused his discretion. The grounds here set down are the same two grounds which, as already ...