For the defendants-appellants, Carpenter, Gilmour & Dwyer (Patrick A. Dwyer and James P. Beggans).
For the plaintiffs-respondents, Vander Burgh & Aronsohn (LeRoy Vander Burgh and I. William Aronsohn).
Before Brogan, Chief Justice, and Justices Bodine and Colie.
The opinion of the court was delivered by
BODINE, J. Three motor vehicles participated in an accident in which injuries were suffered February 15th, 1941, on Route 9W in the Borough of Fort Lee in this state. The action to recover damages for personal injuries and property damage was commenced by the Bornemanns. Their car was being driven in a northerly direction they alleged, and offered proof to show that a Pepsi Cola truck operated by the defendants Joseph Liquori and Armand A. Gennarelli, suddenly backed on to the roadway and that to avoid it they pulled left and collided with a car driven in a southerly direction by the defendant Bronislaw Maciejko, who also sought by counter-claim to recover damages for personal and property
damage suffered by him from the plaintiffs, as well as from the other defendants.
The jury returned verdicts in favor of the Bornemanns against Liquori and Gennarelli, and a verdict of no cause of action upon the Maciejko counter-claim.
Messrs. Liquori and Gennarelli appeal claiming that the learned trial judge in discharging a rule to show cause why there should not be a new trial was guilty of such manifest abuse of discretion as to be shocking to both reason and justice. Nothing is shown save the denial of the motion. That is not enough. Nelson v. Eastern Air Lines, Inc., 128 N.J.L. 46; Cook Coffee Co., Inc., v. Ewell, Id. 210.
The argument seems to be that the Bornemanns should have recovered a judgment against Bronislaw Maciejko or that the appellants should not have suffered a judgment against them. The verdict is based upon a finding of liability in the one case and not in the other. That was within the province of the jury. Maciejko was not seeking a new trial. There is no reason because Maciejko had not judgment in his favor that the Bornemanns should be relieved of their judgment. Dunbaden v. Castles Ice Cream Co., 103 N.J.L. 427.
If the jury found that the accident, so far as the Bornemanns were concerned, was unavoidable, nevertheless they could find as to the counter-claim that Maciejko was negligent and his negligence contributed to the negligence of ...