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Shirk v. Walters

Decided: June 21, 1948.

CHARLES LEE SHIRK, BY BLANCHE SHIRK, HIS NEXT FRIEND, AND BLANCHE SHIRK, INDIVIDUALLY, PLAINTIFFS-APPELLANTS,
v.
AUSTIN S. WALTERS, DEFENDANT-RESPONDENT



On appeal from the Essex County Court of Common Pleas.

For the plaintiffs-appellants, Francis M. Seaman.

For the defendant-respondent, Coult & Satz (Joseph Coult).

Before Case, Chief Justice, and Justice Burling.

Case

The opinion of the court was delivered by

CASE, CHIEF JUSTICE. The appeal is by the plaintiffs from a judgment for the defendant following a jury verdict of no cause of action. The suit is for damages arising out of a collision between an automobile owned and driven by the defendant and a motorcycle operated by the twenty-year-old plaintiff Charles Lee Shirk and owned by the latter's mother and co-plaintiff, Blanche Shirk. The appeal is upon the grounds that the trial court abused its discretion in refusing to grant a rule to show cause why the verdict should not be set aside and in refusing to grant a new trial, and that the court further erred in denying certain requests to charge.

The denial of the rule and the refusal to grant a new trial constitute a single element. The question thereon is whether there was an abuse of discretion, Delaware, Lackawanna and Western Railroad Co. v. Nevelle, 51 N.J.L. 332; and it is only when the refusal becomes a shock to reason and justice that such an abuse of discretion may be said to exist, Nelson v. Eastern Air Lines, Inc., 128 Id. 46, 58.

The alleged abuse of discretion is rested upon the assertion that the verdict was so contrary to the clear weight of evidence and the law as to indicate that it was the result of mistake, passion, bias and prejudice. An examination of the transcript brings us to the conclusion that the verdict is consistent with findings of fact which could be made, and which the jury apparently did make, from the proofs. The defendant testified that he completely stopped at a cross street because of a cautionary traffic light; that, as he started to move, the youth on his motorcycle came out of a driveway on the cross street, "made a sort of diagonal turn" and proceeded about twenty or twenty-five feet ahead of, and on the same street as, the defendant; that the motorcycle, however, was traveling on the macadam shoulder at the extreme right of the roadway whereas the defendant's car was completely on the right concrete lane, the two vehicles traveling at about the same speed with three or four feet between the parallel lines upon which they were moving; that when another cross street was reached the young man, without giving any signal whatever, turned sharply to the left and so quickly that the

defendant did not see the actual turn but was suddenly confronted with the motorcycle broadside in front of him; that in the effort to escape collision defendant veered to the left but in some way separated the motorcycle from the rider, the one being on one side, and the other on the other side, of the car.

Appellants call attention to features of that recital which are said to demonstrate the untruthfulness of the story and the negligence of the narrator. We shall mention only a particularly emphasized incident, namely, that the defendant did not see the motorcycle make the turn although he says he was driving carefully -- "I saw him in front of me all the way down Harrison Avenue, and suddenly the car was in front of me, broadside to me, I mean the motorcycle." The speed with which a movement of the body and a twist of the handle bar may change the direction of a motorcycle is common knowledge with all who have occasion to ride or observe the progress of those two-wheeled vehicles. The presence of the motorcycle was only one of several hazards which called for care from the defendant and could scarcely be given his undivided attention; among others were the potentialities of traffic at the street intersection. There was, of course, as to this incident and other incidents need for the functioning of a fact-finding body to decide just where the truth lay in the conflicting testimony of the witnesses. The jury were there for that purpose, and they had, we think, adequate and rational grounds for the conclusion which they reached. Cascone v. Hendrickson, 8 N.J. Mis. R. 229.

We conclude that the rulings complained of were not erroneous.

Appellants' next point is that the trial court refused to charge the plaintiffs' requests numbered three to eight inclusive. All of those requests, except the fourth, were of abstract principles of law, ...


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