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Petrosino v. Public Service Coordinated Transport

Decided: November 1, 1948.

PAULINE PETROSINO, ADMINISTRATRIX AD PROSEQUENDUM OF JOSEPH PETROSINO, DECEASED AND PAULINE PETROSINO, ADMINISTRATRIX OF THE ESTATE OF JOSEPH PETROSINO, DECEASED, PLAINTIFF-RESPONDENT,
v.
PUBLIC SERVICE COORDINATED TRANSPORT, DEFENDANT-APPELLANT



Jacobs, Eastwood and Bigelow. The opinion of the court was delivered by Jacobs, S.j.a.d.

Jacobs

This is an appeal in a negligence action from a judgment of the Hudson County Court of Common Pleas in favor of the plaintiff-respondent.

On the morning of December 12, 1944, the plaintiff's decedent husband left his home to report to work at the Continental Foods Plant in Hoboken. He carried his lunch and proceeded along First Street towards Washington Street where he customarily took a bus going north. Shortly thereafter he was struck by the defendant's bus which was making a right turn from First Street to proceed south on Washington Street. No one who testified at the trial actually saw the defendant's bus strike the decedent, although there were witnesses who described the surrounding circumstances immediately prior and subsequent thereto. From their testimony, including the justifiable inferences, the jury could reasonably find that the accident occurred in the manner hereinafter described.

At about 6 a.m. the decedent had reached the intersection of Washington Street and First Street and was about to cross Washington Street to wait for his bus. The morning was clear,

the street lights were illuminated, and the visibility was good. The defendant's bus had stopped on First Street at the corner of Washington Street to permit passengers to alight and to wait for a green traffic light. When the light changed to green, the bus started to make a right turn. In the meantime, the decedent had already started to cross Washington Street and was observed by one witness after having taken two or three steps from the curb. The bus driver did not sound his horn; indeed, he testified that he did not see the decedent or anyone crossing the street. While the turn was being completed, the decedent was run over by the front right wheel of the bus which quickly came to a stop. The decedent was immediately taken to St. Mary's Hospital where he remained until March 26, 1945; he was then transferred to St. Francis Hospital where he died on March 31, 1945. Thereafter the plaintiff, as administratrix ad prosequendum and as general administratrix, instituted her action for wrongful death and for injuries from the date of the accident to the date of death.

During the trial there was considerable medical testimony as well as testimony with respect to actuarial tables and the happening of the accident. After having denied defendant's motions for non-suit and directed verdict, the court submitted the issues of negligence, contributory negligence and damages to the jury which returned its verdict in favor of the plaintiff to the clerk in the absence of the judge. Thereafter the defendant obtained a rule to show cause why the verdict should not be set aside primarily on the ground that there was legal error in its taking and entering. Depositions in support of the rule were taken by the defendant to establish (a) what happened in the courtroom at the time the verdict was rendered, and (b) what happened in the juryroom prior thereto.

When the members of the jury returned to the courtroom the clerk asked them whether they had reached a verdict. The foreman replied, "We find for the plaintiff and against the defendant." He then sat down and said nothing further. The clerk then inquired as to what amounts had been found on the two counts of the plaintiff's complaint. The foreman then

rose and said that there was a matter of $1100 medical expenses and that the jurors were confused about the actuarial tables. One or two of the other jurors then conferred with the foreman, at which point he withdrew a paper from his pocket and read the sum of $14,958.58 on the first count, which he said was taken from the tables, and when asked for the amount on the second count he again referred to the paper and read the sum of $7,484.83, which he changed to $7,474.83. The paper from which the foreman read was never introduced in evidence and had been inadvertently handed to the jury with the exhibits in evidence. It bore notes made by the manager of the actuarial department of an insurance company who had testified for the defendant. After the completion of the foreman's remarks, the clerk repeated the verdict of $14,958.58 on the first count and $7,474.83 on the second count and concluded with the customary "And so say you all." At this point counsel for the defendant requested that the jury be polled but this request was denied by the clerk. The subsequent testimony of the jurors indicated that although the jury had agreed in favor of the plaintiff on the issue of liability, no agreement was ever reached as to damages, and the jury's return to the courtroom was to obtain further instructions bearing on damages.

The trial judge reached the conclusion that the verdict was "regularly and legally rendered by the jury and received and recorded by the clerk of the court" and accordingly discharged the rule to show cause. Thereupon the defendant appealed urging that error was committed (1) in rulings on the admission of evidence, (2) in the trial court's charge, (3) in the denial of the defendant's motions for non-suit and directed verdict, and (4) in the taking and entering of the verdict.

1.

Rulings on the Admission of ...


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