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Costanza v. Cavanaugh

Decided: January 27, 1944.

EMELIA COSTANZA AND COSMO COSTANZA, PLAINTIFFS-APPELLANTS,
v.
JOSEPH CAVANAUGH, DEFENDANT-RESPONDENT



For the plaintiffs-appellants, Maurice Levinthal and Cole & Morrill.

For the defendant-respondent, Cox & Walburg (Harry E. Walburg).

Case

The opinion of the court was delivered by

CASE, J. The appeal is by the plaintiffs (the male plaintiff is the husband, joining per quod) from a judgment entered upon a jury verdict in favor of the defendant. There had been an earlier trial at which the verdicts had been rendered for the plaintiffs but in amounts so small as to be grossly out of proportion to the damages suffered, with the result that the trial court, on the application of the plaintiffs and without objection from the defendant, granted a new trial as to all issues.

Mrs. Costanza was struck and injured by defendant's automobile and sues for resulting damages. The accident occurred at or near the junction of Main and Thomas Streets, Paterson. The defendant was driving his automobile northerly on Main Street, after dark on January 9th, 1941, a sleeting, freezing night. Defendant's version is that he continued

on that course past Thomas Street and collided with plaintiff as she ran from the westerly side of Main Street to the easterly side of the same street at about the opening of Thomas Street; whereas the account given by Mrs. Costanza is that she had completed the crossing of Main Street, had turned sharply to the right and was in the act of crossing from the north to the south side of Thomas Street, at the crosswalk, when defendant, without warning, turned from Main Street into Thomas Street and struck her. The controverted issue was whether defendant continued on a straight course and struck Mrs. Costanza on Main Street or turned into Thomas Street and struck her as she was on the cross-walk of that street.

Plaintiffs come up on the court's refusal to charge certain of their requests. The requests were numbered 2, 3 and 5 as presented to the court but are here referred to as 1, 2 and 3. They are:

1. "If plaintiff, Emilia Costanza, while crossing on the crosswalk from the northeasterly corner of Thomas and Main Streets to the southeasterly corner of these streets, saw defendant's automobile proceeding on Main Street, she was justified in inferring that the course of the automobile would not change without warning, and certainly not change into Thomas Street, the crossing of which was occupied by her on foot."

2. "If plaintiff, Emilia Costanza, was struck while crossing on the crosswalk from the northeasterly corner of Thomas and Main Streets to the southeasterly corner of these streets, and there was nothing in her path when she started to cross the street, then she had no reason to apprehend that defendant would dispute her right of way, which, at this crossing, was superior."

3. "The Traffic Law of the State of New Jersey also provides:

"'Except as otherwise provided in this article, the driver of a vehicle intending to turn to the right at an intersection, shall approach the intersection in the lane for ...


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