On appeal from Atlantic County Court of Common Pleas.
For the plaintiff-respondent, Samuel Levinson.
For the defendants-appellants, Kirkman & Mulligan (Eugene N. Harris, of counsel).
Before Brogan, Chief Justice, and Justice Bodine.
The opinion of the court was delivered by
BROGAN, CHIEF JUSTICE. The defendants appeal from a judgment in favor of the plaintiff. The verdict returned by the jury was, on rule to show cause, reduced from $10,000 to $6,000. Two grounds of appeal are argued, the first in challenge of a portion of the court's charge to the jury, and the other claiming that the trial judge, in disposing of the rule to show cause, committed an abuse of discretion in that he refused a new trial.
This is a railroad crossing death case, the action being brought by decedent's widow, as administratrix ad prosequendum.
The decedent, Frank W. Wood, died as the result of injuries suffered by him when a light delivery truck he was driving collided with the corporate defendant's trolley car which at the time was under the control and operation of the individual defendants, McBride and McDowell, motorman and conductor, respectively.
We do not think the appellants are entitled, under the circumstances, to present the first ground of appeal -- that the trial court fell into error in charging the jury -- and for this reason: After verdict the defendants filed three reasons in support of their rule to show cause as follows: that the jury finding was against the clear weight of the evidence on the question of liability and resulted from "passion, prejudice, partiality and mistake;" that the verdict was excessive and, finally, that the verdict was improperly returned in that the jury found for Mrs. Wood in the amount of $10,000 instead of for "Emma A. Wood, administratrix ad prosequendum of the Estate of Frank W. Wood, deceased." After the argument on the rule a brief was submitted to the court by the defendants; therein the "reasons" advanced at the argument were enlarged to include a fourth reason which was: that the verdict was contrary to the court's charge to the jury. It is maintained in the brief of the appellants that certain parts of the court's charge to the jury may still be assigned as error, even though in the brief submitted to the trial court in support of the defendants' rule it was said that the verdict was contrary to the court's charge. To uphold this concept these reasons are advanced: that the added reason was not among the reasons "filed;" that the added reason was not argued orally; that the defendants' contention in the brief was that the jury failed to heed certain parts of the charge and therefore it may be argued on appeal that certain other parts of the charge amounted to legal error. But this is clearly not the fact. In the very first sentence of the brief filed in the court below it is stated that the jury's verdict was contrary to the charge of the court. The phraseology is that "the jury totally disregarded the charge of the court, first, on the question of liability and, secondly, on the question of damages." Further reading of the brief makes manifest
the fact that the argument on this point was general throughout. We consider the law in this jurisdiction settled on the proposition that all grounds advanced for a new trial on rule to show cause why a verdict should not be set aside become res judicata whether those points be reserved or not. (Compare Cleary v. Camden, 119 N.J.L. 387.) There were reservations in the rule to show cause stated thus: "All exceptions taken by the defendant in the trial of the cause * * * are hereby reserved." Nonetheless exceptions that are argued in support of a rule to show cause may not be reserved for appeal. An appellant may not invoke the charge of the trial court in an effort to make the rule absolute and, when unsuccessful in such attempt, later attack the charge previously invoked. (Cf. Cleaves v. Yeskel, 104 N.J.L. 497, and cases therein cited.)
The appellants in the present argument rely upon certain language of the Cleaves case as follows: "But it may be that if defendant specifies in his reasons on the rule that the verdict was against certain portions of the charge as made, or requests refused, specifying them instead of including the whole charge, as here, that he may thereafter argue on appeal that matters charged or the denial of matters not so specified, were erroneous." In the present case the fact situation overcomes this argument. The entire charge of the court was invoked to support the application for a new trial. It follows that no portion of the charge may now be attacked. Finally, we think there is no logic, let alone merit, in the appellants' position, that this point not listed ...