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Dolan v. Chesler

Decided: November 2, 1949.

AGNES DOLAN, PLAINTIFF-RESPONDENT,
v.
MORRIS CHESLER, ADMINISTRATOR OF THE ESTATE OF LOUIS CHESLER, DEFENDANT-APPELLANT



McGeehan, Colie and Eastwood. The opinion of the court was delivered by Eastwood, J.A.D.

Eastwood

Defendant, Morris Chesler, Administrator of the Estate of Louis Chesler, appeals from an adverse judgment of the Hudson County Court in the sum of $7,500.

On December 24, 1947, the automobile of defendant's intestate, Louis Chesler, collided with an automobile owned by one Joseph Gorski, driven by Rudolph Gorski, at the intersection of Bramhall and Jackson Avenues, Jersey City, New Jersey. As the result of the collision, a tire came from one of the two cars, rolled onto the sidewalk, striking plaintiff and throwing her against a post, thereby causing her injury. This action was instituted against the owners and operators of both automobiles involved in the accident. Defendant, Louis Chesler, died prior to the trial and his personal representative was substituted for him.

At the conclusion of the trial, the court granted a motion for dismissal made by defendants, Joseph and Rudolph Gorski, and denied a similar motion on behalf of defendant Chesler. The case was submitted to the jury solely as to the liability of defendant Chesler. No appeal was taken from the court's dismissal of the action against defendants, Joseph and Rudolph Gorski.

The issues dispositive of this appeal are (1) whether the trial court erred in excluding the written statement of Louis

Chesler, deceased, when offered on behalf of his personal representative, and (2) in later admitting only the following portion thereof, when offered by plaintiff:

"Some lady said she was hit by a tire which I later learned came from the rear trunk of my car, locked but knocked opened by blow. I don't know details about lady injured."

For a complete understanding of the issue it is essential that we set forth the statement in full, viz.:

"Feb. 18th, 1948

"STATEMENT OF LOUIS CHESLER

"I, Louis Chesler, age 67, married, state -- I live at 445 Bergen Ave., Jersey City, N.J. I operate a Furniture Store at 98 Monticello Ave., Jersey City, N.J. Dr. Lic. 1096539 N.J. 47. Experience past 30 years. Minor previous accidents. I am owner of a 1936 Nash Sedan Reg. 1 H 94 K N.J. -- 47 (Motor LE 22878 Ser. L23378). On Wed. Dec. 24th, 1947 about 1 P.M. I was operating the above car on my way from home to my place of business. I was driving east on Bramhall Ave. J.C. Alone in car. I reached Jackson Ave. and stopped and noticed a sedan coming in my direction from Greenville. I cannot say how fast but it was about a quarter to half a block away. I started to make crossing as I had plenty of time and when my car reached about three fourths over curbline into Bramhall Ave. on east side it was struck at the right rear by the sedan I had noticed. My car was turned around and stopped facing west 3 to 4 ft. inside Bramhall from Jackson Ave. The other car stopped facing north where it hit, about 5-6 ft. from south curb of Bramhall Ave. and right side close to east curb of Jackson Ave. I believe my car hit a fish market truck parked at north curb facing west at where I stopped. Driver ...


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