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Rynar v. Lincoln Transit Co.

Decided: February 8, 1943.

EDITH RYNAR, WIFE OF DAGO RYNAR, AND DAGO RYNAR, PLAINTIFFS-RESPONDENTS,
v.
LINCOLN TRANSIT CO., INC., A CORPORATION OF THE STATE OF NEW JERSEY, AND FRANCIS J. OGBOURN, DEFENDANTS-APPELLANTS, AND ZENTZ MOTOR LINES, INC., A CORPORATION OF THE STATE OF MARYLAND, CHARLES L. CROSS, JR., AND FRANK DEORGE, DEFENDANTS



For the plaintiffs-respondents, David T. Wilentz and Milton Miller.

For the defendants-appellants, Lincoln Transit Co., Inc., and Francis J. Ogbourn, Charles A. Rooney and Gustave A. Peduto.

Case

The opinion of the court was delivered by

CASE, J. The appeal is from a judgment for the plaintiffs and against the appellant defendants, Lincoln Transit Co., Inc., and Francis J. Ogbourn, entered upon a jury verdict rendered at the Middlesex Circuit of the Supreme Court. Plaintiff Edith Rynar was a passenger on an automobile bus owned by Lincoln Transit Co., Inc., and driven by Ogbourn, an employee of the corporate owner. There was a collision between the bus and an automobile truck-and-trailer, and in that collision Mrs. Rynar received the injuries upon which she and her husband, joining per quod, recovered the judgment under appeal. The suit was against the appellants and also against Zentz Motor Lines, Inc., as owner of the trailer, Charles L. Cross, Jr., as owner of the truck and as in control of the truck-and-trailer, and Frank DeOrge, as employee of Cross and driver of that unit. The jury returned a verdict of $40,000 for the wife and $10,000 for the husband against the bus owner and driver and a general verdict of no cause of action in favor of the other defendants. Lincoln Transit Co., Inc., and Ogbourn, reserving exceptions, sued out a rule against the verdict as excessive and as a result the court ordered and the plaintiffs consented that the $40,000 verdict for Mrs. Rynar should be reduced to $18,000 and that the $10,000 verdict for Mr. Rynar should be reduced to $7,000. Judgment was accordingly entered for an aggregate of $25,000.

The accident happened at about eleven o'clock at night May 24th, 1940, on Route 25 in Raritan Township, Middlesex County. The highway at that point contains four lanes divided by a slightly elevated safety isle into two two-lane highways, one for the east-bound and the other for the westbound traffic. The truck-and-trailer had been off the highway on the grounds of a small gas station where two gas pumps set parallel with the highway afforded space for parking facilities on either side, that is, either between the pumps

and a fringe of stones which set the private grounds off from the road shoulder or between the pumps and the gas station building. The truck-and-trailer had been on the right or building side of the pumps; had been parked there while a mechanic was summoned from a neighboring garage and repaired a clutch spring. There is evidence to sustain a finding that because of the physical limitations, such as the size of the lot, the arrangement of the driveway, the location of the pumps and of the border of the drive, and the overall length of the truck-and-trailer (about thirty-five feet), it was necessary for that combination vehicle, in returning to the highway, to travel a wide arc before straightening out; that, in effect, for a short distance, the movement was a crossing of the line of the traffic moving in the direction in which all parties were headed, that is, away from New York and toward Baltimore. The weather was heavy; it had been raining very hard; the pavement was wet. At the moment there was not considerable precipitation, but there was a drizzle that required the use of windshield wipers. There is evidence sufficient, if believed, to sustain a finding that as the bus drew near the location the truck-and-trailer had emerged from the service station grounds, had come onto the highway, swung in a curve across the slow lane into the fast lane, had partially straightened out, and was moving back toward the slow lane but nevertheless so occupied the entire roadway that another vehicle coming from the rear could not pass and that there were no lights anywhere on the unit; further, that the bus driver, coming up from behind, was unable, because of the heavy weather and the absence of lights on the truck-trailer unit, to see the obstacle until at so short a distance that he was afraid to brake lest his vehicle skid on the wet roadway, wherefore, to avoid a collision, he undertook to mount the safety isle, succeeding with the front wheels but not with the rear wheels, and that the collision ensued. There was also evidence contra to that recited in the last preceding sentence, but the knowledge that there was evidence of the sort just described is necessary to an understanding of some of the points alleged as error.

Appellants' first point is that the trial court erred in evidence

rulings. Certain of these rulings admitted questions put to four of the witnesses during their cross-examination by the attorney for the truck-trailer group. The questions were intended to, and did, elicit the testimony that the witnesses, who had been passengers on the bus, had made money settlements with the bus company for damages that had been caused by the accident presently sued upon. The cross-examiner asserted that the settlements had resulted in an interest or bias on the part of the respective witnesses, and it was upon that hypothesis that the questions were sustained. The contention of the appellants is that, notwithstanding a cautionary charge to the jury administered at the appellants' request, the testimony was brought forth for the purpose of convincing the jury that the bus company had admitted liability in the case, that it was harmful in that respect and that the admission was therefore error. A correlated question was posed in Miller v. Thomas & Son Co., 89 N.J.L. 364, but was not decided for the reason that in that case the witness on direct examination had given testimony on which the question of settlement was deemed to be fair cross-examination.

It is proper in cross-examination to probe a witness as to interest or bias, Klie v. Hollstein, 98 N.J.L. 473, 478; Haver v. Central Railroad Co., 64 Id. 312, and the extent of the examination ordinarily rests within the sound discretion of the trial judge subject to review for abuse, State v. Quinlan, 86 Id. 120, 131. But if the question is not relevant to the issues of the cause and has no tendency to show interest or bias, it should be excluded. State v. Mangino, 108 Id. 475, 480. If the evidence is legal for one purpose but incompetent for another, it will be admitted and the party disadvantageously affected may summon the court's assistance by request to charge or other appropriate means. Perry v. Levy, 87 Id. 670. However, there is a general rule that settlements and compromises are not in themselves evidence as admissions of liability. Hawthorne v. Eckerson Co. (appeal from United States District Court, Vermont), 77 Fed. Rep. (2 d) 844. (See particularly the discussion in the dissenting opinion which seems to be a concurrence with the majority view on this point.) Attempts at compromise have

long been favored in the law. 3 Blk. Com. 299. "The rule undoubtedly is, that an offer to pay any sum by way of compromise of a pending controversy, is not to be given in evidence against the party making it. This rule is founded in policy, that there may be no discouragement to amicable adjustment of disputes, by a fear, that if not completed, the party amicably disposed may be injured." Gerrish v. Sweetser, 4 Pick. 373, 377. The law favors compromises and because it favors them does not permit the bare fact of their occurrence to be interpreted as a guilty admission. It is clear -- and there is no contention otherwise -- that the disputed evidence of settlements was not admissible for the purpose of building up a case of liability against the bus ...


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