Civil action. On rule to show cause why a new trial should not be granted.
The plaintiff brought suit against the defendant to recover damages for personal injuries and property damage as a result of a collision between an automobile owned and operated by the plaintiff and one owned and operated by the defendant. A counter-claim was filed by the defendant for personal injuries and property damage. The collision occurred near the intersection of Ocean Avenue and Marine Place in Deal, New Jersey, on September 1, 1944. The jury returned a verdict of "No Cause for Action" in favor of the defendant and against the plaintiff, and awarded the defendant on his counter-claim against the plaintiff the sum of $1,574.50.
The application for a new trial is based upon "the ground that the verdict was against the weight of the credible evidence." The transcript of the testimony, furnished on the Rule to Show Cause, contains the testimony of only five of the sixteen witnesses who were called to testify in the case. The collision between the two automobiles was severe in character, resulting in the death of one person and injury to all the occupants of the two automobiles. The collision
occurred at half past five o'clock in the afternoon. When the plaintiff, who was driving his automobile, was taken to the hospital after the collision, he was examined by Dr. Binder, who testified that he found that the plaintiff was under the influence of intoxicating liquor and was unfit to operate the automobile. (P-87) The doctor further testified, (P-84) "that the plaintiff's test was positive, which means that he had no co-ordination."
The plaintiff's testimony as to the occurrence was to the effect that he was driving in a southerly direction and that "the weather was drizzling and wet" (P-2); that it was on a Friday before Labor Day; that he was approaching the intersection of Marine Place and Ocean Avenue in the Borough of Deal; that cars were passing on his right side; that he was driving about five or six feet west of the center line of the road; that he saw the defendant's car coming north about two hundred or two hundred and fifty feet away and that the defendant's car was straddling the white line. The plaintiff further testified that the defendant's automobile was swerving (P-4). When asked in what way it was swerving, the plaintiff answered, (P-5) "to the I don't know; to the west side." When first interrogated about the speed of the defendant's automobile, he said he didn't know, and then later testified it was going pretty fast. He also testified that when the defendant's automobile was approaching (P-6) he, the plaintiff, slowed down and in doing so the rear part of his car skidded four or five feet. When asked in what direction did it skid, he answered, "Well, it was facing half way east, about. About forty-five degrees or so." He said his automobile was not over the middle line of the street, but near it. After the skidding the plaintiff's automobile stopped, according to his testimony, and his automobile was on the west side of the middle of the highway when struck by the defendant's automobile. "After it was struck I did not know what happened for two or three days." (P-7)
The plaintiff's testimony was in conflict about other automobiles passing him immediately before the collision, when
compared with testimony given at a previous trial involving the same collision.
He further testified that when he saw the car coming, "I didn't have no chance to get to the other side of the road -- I stopped -- or slowed down. I didn't have a chance to get out of the way. I put on the brakes and stopped the car and as I did so the car skidded, and when it came to rest it was facing just about southeast." He said his car was stopped about five seconds before the collision.
When plaintiff was asked if he did not testify at the previous trial that his car skidded over to the east side of the road, and answered "Yes". His answer given to that question at the last trial was, "I don't quite remember." When asked, Did he deny that he had testified that the car went to the east side of the road, he answered: "No, I am not saying that I deny it, but I say that I don't quite remember."
The testimony of May T. Damon, on behalf of the defendant (P-55), said that she was riding in the back seat of the Schoonmaker automobile with Mrs. Schoonmaker, and that Mr. Schoonmaker was driving the automobile slowly; that he was on the right side of the road, and that before and at the time of the collision Schoonmaker was not driving on the left side of the road, "Never at any time"; that he was never straddling the white line. She said she was thrown sideways in the car and had two fractures of the pelvis and cuts about her forehead; that she did not lose consciousness. She further says that immediately after the collision she was lifted out of the automobile in which she was riding and placed in another. At that time she said the Schoonmaker automobile was near the east curb line of Ocean Avenue near the intersection of Marine Place. And the following question and answer was given: "Q. Where was the Sorenson car at that time Mrs. Damon? A. The Sorenson car was almost at ...