On appeal from the Hudson County Circuit Court.
For the appellants, Townsend & Doyle (Mark Townsend, of counsel).
For the respondent, Stephen Mongiello.
The opinion of the court was delivered by
COLIE, J. Appellants appeal from a judgment awarding damages for the wrongful death of an infant four years of age. They assert error in the trial court's overruling of a question asked of the defendants' witness, Edward J. Ahearn, and error, amounting to abuse of judicial discretion, in the trial court's refusal to set aside the verdict. Our disposition of the first question renders unnecessary a discussion of the second.
The defendant Hausold, an employee of the co-defendant, Jagels Fuel Corp., was driving a truck on his employer's business in a southerly direction on Summit Avenue in Jersey City. The plaintiff's decedent was crossing Summit Avenue from east to west on the northerly crosswalk of Charles Street which there forms a right-angle intersection with Summit Avenue. An important fact question involved was whether the plaintiff's decedent was walking or running across Summit Avenue.
Toward the end of the first day of the trial, the plaintiff called to the stand one Edward J. Ahearn who testified that
he was standing on the northeast corner of Bowers Street and Summit Avenue, looking toward Charles Street. Bowers Street is one block distant from Charles Street. At this point in Ahearn's examination, the court recessed until the following morning at which time plaintiff's attorney stated that he wished to withdraw the witness and rest his case. Defendants' attorney objected that he was being deprived of the right to cross-examine and the court then directed that the witness be produced. After some delay the witness was located and resumed the stand. Defendants' counsel then proceeded to cross-examine. The witness was asked whether he saw the boy and he said that he did. A belated objection to the question was made and sustained, followed by a motion to strike the answer from the record. From this point the record reads as follows:
"The court: It isn't within the direct examination. If you wish to make him your witness you have the right to do that.
Mr. Townsend: I will make him my witness, if the court please.
By Mr. Townsend: Q. You saw the boy run across the street, didn't you? A. He didn't run across; I saw him step off the curb.
Q. I say you saw him run across the street, didn't you? A. No, sir.
Q. You did not? A. No, sir.
Q. You read and write, don't you? ...