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Lebavin v. Suburban Gas Co.

Decided: January 31, 1946.

HERMAN LEBAVIN, PLAINTIFF-RESPONDENT,
v.
SUBURBAN GAS COMPANY AND JOHN G. LURKER, DEFENDANTS-APPELLANTS



On appeal from the Supreme Court.

For the plaintiff-respondent, Jacob R. Mantel.

For the defendants-appellants, Coult, Satz, Morse & Coult.

Wells

The opinion of the court was delivered by

WELLS, J. This an appeal from a judgment for $6,000 entered in the Supreme Court, Essex Circuit, in favor of the plaintiff-respondent against the defendants-appellants in an action in tort for damages arising out of negligence. There was an intersection collision between a car operated by the plaintiff and a truck owned by the defendant Gas Company and operated by defendant Lurker, its employee.

The defendants assign as error the action of the trial judge in refusing to nonsuit the plaintiff and in refusing to deliver to the jury the two charges requested.

The first point made is that "the trial court should have granted the motion for a nonsuit on the ground that the plaintiff failed to show negligence of the defendant in the premises," There was no motion to direct a verdict for defendants at the close of the whole case. "The rule is of course thoroughly settled that the refusal of nonsuit for failure of proof is not error leading to a reversal is such proofs were afterwards supplied by either party in the progress of the trial." Layden v. Goodyear Tire and Rubber Co., Inc., 129 N.J.L. 54.

The second point is that contributory negligence appears as an irresistible inference from the plaintiff's case, and a nonsuit should have been granted on that ground.

We shall treat the two points together. The plaintiff was driving an ordinary closed car in a southerly direction along River Road in the Township of Hanover. River Road runs north and south and is macadam or tarvia and about nineteen feet in width. It intersects with New Jersey Route 10, which runs east and west and is concrete and has four lanes across the intersection.

There wad testimony from which the jury could find or infer at the close of plaintiff's case that on a clear day in the morning of April 7th, 1944, plaintiff was carefully driving his car at about fifteen miles per hour southerly on River Road; that he was well acquainted with the intersection of this road with Route 10 and there was a stop sign thirty to thirty-five feet from the crossing and that he almost, but not quite, stopped at the stop sign, looked to the left and saw no

car coming along; that he gradually approached the crossing and came to a point five or six feet from the exact corner of Route 10 and River Road where he came to a full stop and looked up and down Route 10 and saw no car coming from his right but one car from his left going west on Route 10. He waited for about one-half minute until the west-bound car passed, and before he "got in gear" he looked again in both directions and didn't see any cars coming down Route 10 within three hundred or four hundred feet, which was the gear at about twelve miles per hour, and that as he was crossing he looked around and all over the road to make sure nobody was in his way, and he was careful, but that he didn't make any other observation until he was more than three-quarters of the way across the intersection when he saw out of the corner of his eye the truck when about fifteen feet away bearing down on him from his right traveling east along Route 10, and it seemed to be coming at a "terrific rate of speed, very fast," and that he, the plaintiff, swung his car as hard as he could to the left in an effort to get out of the way, but it seemed only a fraction of a second when he felt a terrific crash in the back of car, and that's all he knew, and he was rendered unconscious. The photograph, Exhibit 13, showed that plaintiff's car was badly damaged in its right rear.

On cross-examination plaintiff admitted that, although there were several obstructions tending to confuse his view from Fiver Road to his right on Route 10, such as trees, four or five parked cars, buildings and all kinds of signs, thirty, forty to fifty feet in length, he could see at least three hundred feet to his right along Route 10. In addition to plaintiff's own testimony there was offered by plaintiff testimony by witnesses as to the positions and the condition of the respective cars after the accident which, with the map and photographs offered in evidence, we think, clearly made out a prima facie case of negligence on the part of the defendant. But, ...


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