For the plaintiff-respondent, John W. McGeehan, Jr.
For the defendant-appellant, David Green and Samuel Green.
Before Case, Chief Justice, and Justice Burling.
The opinion of the court was delivered by
CASE, CHIEF JUSTICE. This is an appeal by the defendant from a judgment for the plaintiff for injuries suffered by the latter as the result of a collision between an automobile driven by the defendant, in which plaintiff was a passenger, and
another automobile at a street intersection in the City of Newark.
Appellant's first point is that the question of whether a passenger in a motor vehicle is a licensee or an invitee is for the court to decide where only a single inference can be drawn from the facts and that the trial court erred in putting the question to the jury, citing Augustine v. Haas, 121 N.J.L. 58. The factual situation upon which that rule rests was not present in this case. Whether or not the presence of plaintiff in the car was the result of a request made by the plaintiff of the defendant or the result of an acceptance by the plaintiff of a standing invitation issued by the defendant was an open question and was properly left by the court to the determination by the jury.
Appellant's second point is that where a jury is required to determine from the facts before it whether a passenger in an automobile is a licensee or an invitee, it is incumbent upon the trial court in charging the jury to explain the legal meaning and significance of the terms "licensee" and "invitee" and that the failure to do so constitutes reversible error. The grounds of appeal do not precisely sustain the point as presented. We shall, therefore, consider the grounds upon which the point is rested and the exceptions out of which the grounds arise. The court charged the jury generally that the question as to whether the plaintiff was an invitee or a mere licensee was to be determined by the jury, that if the plaintiff was an invitee the defendant owed the plaintiff the duty of using reasonable care in the operation of his automobile, and that if the plaintiff was a mere licensee the defendant owed to the plaintiff only the duty of refraining from acts wantonly or willfully injurious. In addition, the court charged defendant's request No. 10 as follows:
"If you find that plaintiff was a mere licensee in automobile of defendant, Anthony Friedhof, and there being no proof of willful injury on the part of defendant, Anthony Friedhof, then, your verdict shall be in favor of defendant, Anthony Friedhof, and against the plaintiff of no cause of action."
There were two further requests on the same subject presented by the defendant. The court ...