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Perry v. Public Service Co-Ordinated Transport

Decided: January 15, 1948.

CLAUDE PERRY, PLAINTIFF-APPELLANT,
v.
PUBLIC SERVICE CO-ORDINATED TRANSPORT AND JOHN MONATH, DEFENDANTS-RESPONDENTS



For the plaintiff-appellant, John A. Laird and Fred Freeman.

For the defendants-respondents, James O. Boyd and Carl T. Freggens.

Before Case, Chief Justice, and Justice Burling.

Case

The opinion of the court was delivered by

CASE, CHIEF JUSTICE. The appeal is from a judgment in the Essex County Court of Common Pleas following a jury verdict in favor of the defendants. The action was to recover

damages for personal injuries suffered by the plaintiff from a collision wherein a bus, operated by the defendant corporation and driven by the individual defendant, collided with a truck in which the plaintiff was seated. Plaintiff was employed as a helper on the truck which had been parked "double" by its driver and left temporarily while the latter was making a delivery. Plaintiff, according to his statement, was seated in and on the right side of the truck, the driver's seat being on the left. Plaintiff suffered several injuries, of which one was to the thumb of his left hand, injured, as he testified, when "the door caught my finger." It was the testimony of the defendant bus-driver that as the front of his bus went past the truck the door of the truck cab was closed and there was a clearance of two feet; that as the bus proceeded he heard a crash at the rear of his bus and, looking back, saw that the truck door was open and crushed. Upon such and other proof the defendant contended that the plaintiff was in the act of opening the door on the left or traffic side of the illegally parked truck and that, upon the postulate of such a happening, the plaintiff was guilty of contributory negligence.

Appellant counts, first, upon the admission of proof that plaintiff received compensation for his incapacity for work from his employer. That proof was admitted on the hypothesis that the man had extended his period of inactivity following the accident to an unnecessary length for the reason that he was being paid disability for the period he was unable to work. That was the reason stated when the evidence was admitted, and the status of that proof as thus circumscribed was clearly stated to the jury by the judge in the charge:

"I charge you that such consideration, if any, as you may give to the testimony of plaintiff that he received $600 by way of workmen's compensation should be limited strictly to the question of whether or not it had any bearing upon the plaintiff's disinclination, if there were any disinclination on his part, to resume his normal occupation when he might otherwise have taken up his customary line of work.

"In fixing the amount of wages lost by the plaintiff as a result of any negligence chargeable to the defendant in this

action, if you find upon consideration of all the testimony that there was any loss of wages so chargeable to the defendant, you cannot deduct from such amount the $600, or any amount which the plaintiff ...


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