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Turner v. Martins

Decided: March 7, 1956.

ARNOLD J. TURNER, PLAINTIFF-RESPONDENT,
v.
CARLOS MARTINS AND SEBASTIAN PARADELLA, DEFENDANTS-APPELLANTS. ARNOLD J. TURNER, PLAINTIFF-RESPONDENT, V. SEBASTIAN PARADELLA AND CARLOS MARTINS, DEFENDANTS-APPELLANTS



Clapp, Jayne and Francis. The opinion of the court was delivered by Jayne, J.A.D.

Jayne

The appendix submitted to us on this appeal is so undernourished that we are unable to preface our opinion by a disclosure of the allegations of the pleadings, the terms of the pretrial order, much less the factual circumstances to which the testimony related. The statement at the head of the plaintiff-respondent's brief informs us that the present litigation was occasioned by the occurrence on October 25, 1953 of a collision at the intersection of First and Atlantic Avenues in Spring Lake of an automobile owned and operated by the plaintiff and one owned by the defendant Paradella and driven by the defendant Martins.

We acquire the following explanatory information from the court's charge to the jury:

"Now, these are really three separate claims. One claim is by Mr. Turner, as I have indicated, for personal injuries and property damage to his automobile against Mr. Martins; another claim is by Mr. Martins against Mr. Turner for injuries sustained by him; and the third, as I stated is the claim of Mr. Paradella against Mr. Turner for the damage to his automobile."

From the same source is harvested the understanding that each driver was accused of negligence and its correlative, contributory negligence.

Since this appeal, prosecuted by leave of the court, is solely confined to the action of the trial judge in granting a new trial as to all parties and all issues, and projects chiefly considerations of matters of law, we shall regard

the appendix as sufficiently comprehensive for present purposes.

In granting the new trial, the judge with becoming frankness remarked:

"The Court is going to reverse itself and say that it did not properly and lucidly charge the correct law to the jury insofar as contributory negligence is concerned.

I will set aside the verdict of the jury and grant a new trial as to all issues including the counterclaim."

Our attention is attracted by counsel for the appellant to the fact that the judge had previously stated:

"I read the complete charge this morning and talking as a lawyer I think that the complete charge was probably good, but I am afraid that I may have misled the jury in that portion of it wherein I failed to add the words 'and it ...


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