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Schifano v. Kaiser

Decided: February 16, 1945.

ANGELO SCHIFANO, AN INFANT, BY HIS NEXT FRIEND, ETC., ET AL., PLAINTIFFS-APPELLANTS,
v.
LEONARD KAISER, DEFENDANT-RESPONDENT, HARRY KAISER ET AL., DEFENDANTS; WILLIAM DACHILLE, AN INFANT, BY HIS NEXT FRIEND, ETC., ET AL., PLAINTIFFS-APPELLANTS, V. LEONARD KAISER, DEFENDANT-RESPONDENT, HARRY KAISER ET AL., DEFENDANTS; JOHN SESTA, AN INFANT, BY HIS NEXT FRIEND, ETC., ET AL., PLAINTIFFS-APPELLANTS, V. LEONARD KAISER, DEFENDANT-RESPONDENT, HARRY KAISER ET AL., DEFENDANTS



On appeals from judgments of the Hudson County Court of Common Pleas.

For the plaintiffs-appellants, Charles A. Rooney, Gustave A. Peduto, Carey & Lane, David A. Pindar, Herman W. Klausner and Peter P. Artaserse.

For the defendant-respondent, John R. Kelly.

Before Brogan, Chief Justice, and Justices Donges and Perskie.

Donges

The opinion of the court was delivered by

DONGES, J. These appeals are from judgments for the defendant in three cases tried together in the Hudson County

Court of Common Pleas. They are submitted together and, inasmuch as the alleged error is directed to the charge of the court, are argued in the briefs as one case.

It appears that on April 24th, 1941, the three infant plaintiffs, Angelo Schifano, William Dachille and John Sesta, were walking along the southerly sidewalk of Claremont Avenue, in Jersey City, in a westerly direction, and were struck by an automobile, which was traveling eastwardly on Claremont Avenue and mounted the curb east of Arlington Avenue, after collision with a car going south on Arlington Avenue. The undisputed testimony was that the car owned by Harry Kaiser was being driven by the defendant-respondent, Leonard Kaiser, and was proceeding southerly along Arlington Avenue, and the other car was owned by John Smith and was being driven by Stanley Gorys in an easterly direction on Claremont Avenue. The owners and drivers of both cars were made defendants, but, at the trial, suit was discontinued as to all defendants except Leonard Kaiser. The jury returned a verdict for Leonard Kaiser.

The real question of fact was as to the alleged negligence of Gorys in going through a red light and proceeding at a high rate of speed and negligently contacting the car driven by Kaiser, or the alleged negligence of Kaiser in going through a red light and negligently proceeding into Claremont Avenue and contacting the car driven by Gorys. There was a conflict of testimony on this important question of fact, but the jury decided in favor of the defendant Kaiser.

The only points argued on this appeal relate to the charge of the court.

It is first urged that it was error for the trial judge to refuse to charge as requested by plaintiffs-appellants:

"3. If you find that the defendant, Leonard Kaiser, violated any of the foregoing provisions of our Traffic Act, you may consider such violations ...


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