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McDonald v. Mulvihill

Decided: July 1, 1964.

PONCE DELEON MCDONALD, AN INFANT, BY HIS GUARDIAN AD LITEM, MARGIE LEE MCDONALD, AND MARGIE LEE MCDONALD, INDIVIDUALLY, PLAINTIFFS-APPELLANTS,
v.
DELLA MULVIHILL AND JOHN MULVIHILL, DEFENDANTS-RESPONDENTS



Goldmann, Kilkenny and Collester. The opinion of the court was delivered by Collester, J.A.D.

Collester

Action was brought in the Superior Court, Law Division, to recover damages sustained by plaintiff Ponce DeLeon McDonald, an infant pedestrian, who was struck by an automobile owned by Della Mulvihill, and operated by John Mulvihill, her husband. At the close of the evidence the court dismissed the action against Della Mulvihill because there was no proof that her husband was operating the automobile as her agent at the time of the accident. The case against defendant John Mulvihill was submitted to the jury, which returned a verdict of no cause for action.

Plaintiffs' motion to set aside the verdict and grant a new trial was denied. However, on this appeal they do not argue that the verdict was contrary to the weight of the evidence. They limit their grounds of appeal to two issues, namely, that the trial court erred (1) by admitting in evidence a reaction and stopping distance chart and a braking distance chart, both published by the New Jersey Division of Motor Vehicles, and (2) by failing to instruct the jury on the question of proximate cause with reference to contributory negligence of the infant plaintiff.

Ponce DeLeon McDonald was injured on July 26, 1960, at about 11:30 A.M., as he was crossing from the west to the east side of Route 440, between Sip Avenue and Broadway, in Jersey City. Route 440 is a five-lane, heavily travelled highway. Two of the lanes are northbound and two southbound. The fifth and center lane is not used for traffic, being controlled by a red light at all times, as a safety factor. At the intersection with Sip Avenue, traffic is controlled by traffic lights which a pedestrian can activate by pushing a button mounted for that purpose on a pole located at the side of the highway near the crosswalk.

On the day of the accident, the infant plaintiff, then aged 10 years and 10 months, accompanied by his brother, crossed from the east side of Route 440, where they lived, to Tooley's Truck Stop located on the west side of the highway. An hour and a half later the infant decided to return alone. He went

to the crosswalk which crosses Route 440 at Sip Avenue and pushed the traffic light button in order to stop traffic so that he could cross. While waiting for the lights to change, he walked northerly from the intersection to play at a clothing store sign located on the Tooley property. He testified the traffic lights changed and traffic stopped, and he started to cross the highway at this point, approximately 200 feet north of the intersection. He had crossed into the second or inside southbound lane when he heard the squeal of brakes and began to run. He was struck by defendant's vehicle which was proceeding southerly in the inside southbound lane and which swung into the center lane in an effort to avoid striking the boy.

After the accident defendant's automobile was taken to the Hudson County police headquarters and thereafter to the motor vehicle inspection station in Jersey City, where the brakes were tested by the station supervisor, Stephen J. Bruckner.

I.

At the trial plaintiffs called Bruckner as a witness. He was qualified as a brake expert by the court, based on his employment by the Division of Motor Vehicles for 22 years. He testified that his test of defendant's automobile after the accident indicated there was "insufficient reserve" in the parking brake and that the service brake pedal -- the foot brake -- went "practically to the floor." A Weaver test, in which the vehicle was driven over four plates set in the floor to register the braking effort on each wheel, revealed that the pressures on the two front and two rear brakes, respectively, were equal but too low. According to Bruckner, the normal Weaver readings for this type of vehicle are 1,000 pounds of braking pressure on the front wheels and 600 pounds on the rear wheels. He found this automobile to register 600 pounds and 400 pounds, respectively.

On cross-examination defendant's counsel asked Bruckner the distance in which a car travelling at 25 M.P.H. on a dry

black-top roadway, with good brakes, could be brought to a stop. Over plaintiffs' objection that the witness had not qualified other than as an inspector of brakes in a motor vehicle inspection station, Bruckner was allowed to ...


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