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Ellis v. Dowd

Decided: August 27, 1942.

CAROLYN E. ELLIS, MILTON ELLIS AND GEORGE BORRACK, EXECUTOR OF THE ESTATE OF MARY GERISH, DECEASED, PLAINTIFFS-APPELLANTS,
v.
WILHELMINA DOWD, JOSEPH SIPPORTA AND JERSEY CITY AND LYNDHURST BUS COMPANY, DEFENDANTS-APPELLEES



On appeal from the Bergen County Court of Common Pleas.

For the appellants, John F. McCann (Emil L. Wulster, of counsel).

For the appellees Joseph Sipporta and Jersey City and Lyndhurst Bus Company, William V. Breslin.

Before Justices Bodine, Heher and Perskie.

Perskie

The opinion of the court was delivered by

PERSKIE, J. The sole question requiring decision in this cause is whether the trial court erred, as claimed, in entering a judgment of nonsuit on the ground that plaintiffs' proofs failed to present a jury question as to the alleged negligence of defendants.

This is an action in tort. It arises out of an automobile accident which occurred on December 27th, 1938, between 4:00 and 5:00 P.M., at the intersection of Ridge Road and Second Avenue, in the Township of Lyndhurst, Bergen

County, New Jersey. A bus of the defendant corporation, operated by its servant Joseph Sipporta, traveled in a southerly direction along Ridge Road and stopped for a red traffic light when it reached Second Avenue. At the same time, a Chevrolet sedan was operated by defendant Wilhelmina Dowd. It carried Carolyn E. Ellis, Johanna Rauch and Mary Gerish, as invited passengers, and traveled in a northerly direction along Ridge Road. It, too, stopped for the same red traffic light when it reached Second Avenue. As the traffic light changed from red to green, and the operator of the Chevrolet sedan proceeded from its northerly direction to a westerly direction into Second Avenue (i.e., as she endeavored to make a left-hand turn) a collision occurred between her car and the bus which was proceeding in its southerly direction along Ridge Road.

The results of this accident were that Mary Gerish died, and Carolyn E. Ellis and Johanna Rauch were seriously injured. Carolyn E. Ellis and her husband sued all defendants to recover their respective damages; George Borrack, as executor of Mary Gerish, also sued all defendants to recover the proper damages sustained; Johanna Rauch is not a party to this suit. Wilhelmina Dowd filed no answer to this suit and the record fails to disclose the disposition of the case as to her.

At the end of plaintiffs' proofs, defendants Jersey City and Lyndhurst Bus Company (and its driver Joseph Sipporta) moved for a nonsuit.

The trial judge concluded "* * * There is nothing to show what the driver did or could have done, or what he did that was negligent or what he failed to do that he should have done in the exercise of ordinary care." He granted the motion accordingly. From the judgment based on that motion, plaintiffs appeal.

Our careful consideration of all the evidence in this case leads us to the conclusion that the trial judge fell into reversible error. That conclusion is based upon the settled applicable principles of law. We do not weigh the evidence. We treat as true all the evidence offered in support of ...


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