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Mitilenes v. Snead

Decided: June 7, 1957.

VASILIKI G. MITILENES, GENERAL ADMINISTRATOR OF THE ESTATE OF GEORGE D. MITILENES, AND VASILIKI G. MITILENES, ADMINISTRATOR AD PROSEQUENDUM OF THE ESTATE OF GEORGE D. MITILENES, PLAINTIFF-APPELLANT,
v.
WALTER SNEAD, ROBERT SNEAD AND CONSTANTINE E. CARRAS, DEFENDANTS-RESPONDENTS



Goldmann, Freund and Conford. The opinion of the court was delivered by Goldmann, S.j.a.d.

Goldmann

Plaintiff, as general administrator and as administrator ad prosequendum , appeals from a Superior Court, Law Division, judgment in favor of defendant Carras in an intersectional automobile negligence action resulting in the death of his decedent, George D. Mitilenes.

Decedent was a passenger in the Carras automobile travelling east on Branford Place, Newark, at 6 A.M. on the morning of the accident. Defendant Robert Snead was driving defendant Walter Snead's car north on Washington Street. The intersection at Branford Place and Washington Street is controlled by traffic signals. As in all actions of this nature, each defendant places the blame on the other. Carras claims that the green light was in his favor as he proceeded through the intersection. He testified that the first time he saw the Snead car was "a split second before

the impact," and this was repeated several times during direct and cross-examination. He tried to apply his brakes and veer to the left, but these efforts to escape collision were unsuccessful; his testimony was "The moment I saw it, it hit." The jury returned a verdict in favor of plaintiff against Robert Snead, a verdict of no cause of action against Carras, and a verdict in favor of Carras on his cross-claim against Snead. The claim against Walter Snead was dismissed with prejudice at pretrial.

Robert Snead filed no appeal from either of the judgments against him. However, by letter sent through counsel he informally sought leave to adopt appellant's brief and join in the appeal. Such leave cannot be granted. There was no timely filing and service of a notice of appeal from either of the judgments, and they cannot be disturbed. In re Pfizer's Estate , 6 N.J. 233, 239 (1951).

The basis of plaintiff's present appeal is that the trial court improperly refused to permit Carras to be cross-examined as to testimony given in a previous criminal proceeding, arising out of the same accident, the contention being that it was inconsistent with Carras' testimony in the instant proceedings.

The cross-examination in question was by counsel for Snead, not plaintiff. Carras was asked:

"Q. Was this question asked you [in the criminal proceeding]: 'When you first saw this car you say it was just a question of a second before the impact occurred. Is that right?'

And at that point the Court said: 'He saw the other car a split second before the impact.'

Then the question: 'At that time can you tell the Court and the jury where the car was, the car that struck you?'

Your answer: 'I did not see that car, sir.'

Was that your answer to that question ...


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