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Paul v. Flannery

Decided: May 19, 1942.

ALFRED PAUL, PLAINTIFF-RESPONDENT,
v.
ALEXANDER FLANNERY AND MARY FLANNERY, DEFENDANTS-APPELLANTS



On appeal from the Hudson County Circuit Court.

For the respondent, Pesin & Pesin (Meyer Pesin, of counsel).

For the appellants, Foley & Francis (Gerald T. Foley, of counsel).

Rafferty

The opinion of the court was delivered by

RAFFERTY, J. This appeal is from a judgment entered upon jury verdict in the Hudson Circuit of the Supreme Court.

The action grew out of an automobile accident occurring at Union City, Hudson County, on October 14th, 1939. Plaintiff testified that he was operating his motorcycle southerly on Bergenline Avenue, and upon approaching the intersection of that avenue with Fifteenth Street, he reduced speed to approximately four miles per hour, made an observation to his left, or easterly, down Fifteenth Street, and observing no traffic coming from that direction made another observation to his right, or westerly, and continued across the intersection. He had gotten into the intersection when his motorcycle collided with an automobile owned by Mary Flannery and operated by Alexander Flannery, her husband.

Because of an obstruction plaintiff could see only 100 feet easterly. His motorcycle was damaged and he and a passenger were thrown therefrom and suffered certain injuries. A disinterested witness testified that she heard the crash and came upon the scene immediately, at which time she observed defendants' automobile stopped some distance down the street and defendant Alexander Flannery getting out of the car.

For defendants it was testified that Alexander Flannery was operating the automobile owned by his wife, Mary Flannery, in a westerly direction on Fifteenth Street; that upon approaching this intersection he made an observation to his right down Bergenline Avenue, he being able to see for a distance of 150 feet down that avenue, and observing no traffic he proceeded across the intersection at a speed of from 15 to 20 miles per hour and as he reached the westerly crosswalk on Fifteenth Street the motorcycle collided with the right side of the automobile at about the center of the car. Mr. Flannery testified that he stopped the automobile immediately and within a car length and, explaining the fact that plaintiff's witness had seen his car some distance down the street, he testified that it was necessary for him to remove his car farther down the street because of parked automobiles at the curb. Thus it will be seen that the matter is a typical intersection accident case.

Mr. Flannery testified respecting the ownership of the automobile, and which is not disputed, that he purchased the automobile with his personal funds and made a gift of the machine to his wife; that the car was habitually used by members of the family, but that on the day of the accident he was using it for his exclusive purposes. He had used the automobile on his employment throughout the day and, being on his way home, he intended to make purchases of provisions for his household and thereafter to proceed home.

Motions for nonsuit and direction of verdict made in behalf of defendants were properly denied as to Alexander Flannery, but the failure to direct verdict in favor of Mary Flannery was error.

It is argued that these denials of motion were erroneous in law on the ground that there was no ...


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