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Mathis v. Fantozzi

Decided: March 28, 1969.

AARON MATHIS, PLAINTIFF-RESPONDENT,
v.
MICHAEL FANTOZZI, DEFENDANT-APPELLANT. J & R AUTO SALES, INC., ET AT., PLAINTIFF-RESPONDENT, V. AARON MATHIS, DEFENDANT- RESPONDENT, AND MICHAEL FANTOZZI, DEFENDANT-APPELLANT



Goldmann, Kolovsky and Carton.

Per Curiam

Defendant Fantozzi appeals from separate judgments entered on a jury verdict in these consolidated actions, awarding plaintiff Mathis $1,470 for his personal injuries and plaintiff J & R Sales, Inc. $925 for property damage. He also appeals from the denial of his motion for a new trial.

We agree with the trial court that since both Mathis and Fantozzi acknowledged that drivers using the Hudson County Boulevard stop at the nearest corner when the lights on the Boulevard are red against them -- a practice which both said they followed -- that practice was appropriately a factor to be considered by the jury in determining the issue of negligence. Accordingly, we find no merit in the claim that it was error to admit testimony as to such custom and usage. 2 Restatement, Torts 2 d, § 295A, p. 62 (1965); 2 Harper and James, The Law of Torts, 977 et seq. (1956);

Annotation, "Custom or practice of drivers of motor vehicles as affecting question of negligence," 172 A.L.R. 1141 (1948), 77 A.L.R. 2 d 1327 (1961). Nor was there prejudicial error, in the circumstances here present, to permit evidence of the custom even though it had not been specifically pleaded. See 38 Am. Jur., Negligence, § 267, p. 957 (1941).

We have examined the trial judge's charge and, contrary to defendant's contention, find no error therein.

Affirmed.

19690328 ...


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