Wood v. Morris & Co.

Per Curiam. The plaintiff, a youth of seventeen or eighteen years of age, while riding his motorcycle at the intersection of Sixteenth avenue and Summer street, in the city of Paterson, came into collision with a motor truck belonging to -the defendants and operated by their employe, and sustained very serious injuries consisting, in part, of a fractured pelvic and a ruptured bladder, the latter resulting in the abnormal discharge of urine over which he has no control, and the condition generally being such as to he incapable of cure except bv a major operation. He brought his suit for damages, his father acting as next friend, and also suing in his own right for compensation for the loss of services, care, medicine, &c. The jury found a verdict of $9,000 in favor of the young man, which does not seem to be challenged as to its amount, [1011] and they found a verdict of $?',()()() in favor of the father which is now claimed to be excessive. The present rule embraces both claims, and certain exceptions have been reserved as grounds of appeal. Xot all ihe reasons under the present rule are argued. The testimony showed strongly contrasting features as to the circumstances of the accident, but, for the purposes of this rule, the defendant appears to accept the version of the plaint ill's as settled by the verdict, and claims that even on that version, the court should have nonsuited or directed a verdict because of contributory negligence. According to the case as made out for the plaintiff, lie was proceeding slowly in a northerly direction on Summer street intending to turn east into Sixteenth avenue: his view to the enA on Sixteeiiih avenue was cut off by a building until he cleared that building. He was also watching to the northward and westward. Suddenly lie saw the defendant’s truck headed west on Sixteenth avenue ami turning to the southward on Summer street cutting the corner to its left into Summer street so close to the southeast curl) that plaintiff could not possibly pass it. but apparently attempted to head off the truck and in so doing ihe plaintiff swerved sharpely to the left, or northwest. and was caught by the truck before he had succeeded in crossing its bow, in nautical parlance. The above are the. salient facts in the ease, and, accepting them, wre are asked to say that the court ought to have held as a court question that the plaintiff should have seen the truck sooner or should have kept to the right or should have done something different from what he did. It has been many times held, both in tliis court and in the Court of Errors and Appeals, that ordinarily the court cannot decide these questions arising out of vehicular accidents in a public highway, and if the court .should not decide them, it necessarily means that the jury must. Xo doubt the jury could have found, if they had thought proper, that the plaintiff was guilty of contributory negligence. In such a ease as Faggioni v. Weiss. 122 Atl. Rep. 840, they seem to have held the defendant negligent for turning to the left at a critical juncture; but every case must [1012] rest on its own circumstances. If the plaintiff had been of age and was fully chargeable with the rule of contributory negligence, we doubt very much whether the court should have taken the question from the jury because, when confronted with a sudden emergency, he did something which perhaps turned out to be wrong. Still less should the court control the question in the case of an infant, even of age sui juris. As to the amount of the verdict in favor of the father, it is claimed that this was excessive, and, in connection with this claim, it is urged that the court erred in refusing to charge the following request on behalf of the defendant: “In awarding damages for loss of wages or earnings, if you find for the plaintiff you should take into consideration only the summer of 1922, from August 11th to the beginning of school in September, as the testimony is that David Wood intended to return to high school and therefore would not have made wages after school opened. There is no testimony as to any definite wages received by him during the school term.” We are clear that it was no error in denying this request because the reasonably probable loss of wages is by no means confined to the summer of 1922, the father being entitled to any wages earned by the son until his majority. As to the amount generalljr, the defendant seems to concede that actual expenditure amounting to $2,891 was proved and claims that $4,000 would be enough to award to the father after taking everything into consideration. With this, however, we are unable to agree, because the expense to the father is not confined to a period ending with the beginning of the suit, but the jury should properly be required to consider what reasonable expense he would in all probability have to incur without limit as to time, certainly until the majority of the infant, and perhaps even after that if the young man should not be restored to health and should be dependent upon his father for aid. It was manifest that the 3rounger plaintiff could not be restored to sound health without an important operation which would be very expensive and for which, very [1013] probably, the father would have to pay. The duty of support in the ease of an “impotent person or other poor person not able to work” does not end at majority, but may continue indefinitely. Comp. Stat., p. 4023, § 30; Pamph. L. 1911, p. 397, § 15; Stark v. Fagan, 90 N. J. L. 187. It is true that the trial judge in liis charge limited the jury to considering the obligation of the father to provide medical care and attention for his son until he shall arrive at the age of twenty-one years; but even oil this basis, the jury were entitled to find that in all reasonable probability the expenses theretofore incurred by the father would not end the matter, but that lie would he obligated to incur and pay a very considerable amount in addition to them. We think, therefore, that the verdict was not excessive as to the father. The other questions argued need but slight comment. The action of the court in allowing the jury to inspect the plaintiffs wound and judge of his physical condition by what was visible to them was in no way legally erroneous and was discretionary with the court. The charge in relation to the Traffic act we think was substantially correct. The court called attention to the pertinent provisions of the Traffic act and properly instructed the jury that, while they could be considered as bearing upon the question of negligence and contributory negligence, they were not controlling. This is in entire accord with our decisions. Healey v. Braested, 120 Atl. Rep. 13; Doyon v. Massoline Motor Car Company, Id. 206; Baker v. Fogg, 95 N. J. L. 230. The rule to show cause will he discharged.