Cohen v. Public Service Transportation Co.

| N.J. | Mar 11, 1929

Per Curiam.

This is plaintiff’s rule for new trial in an action to recover damages for injuries received by the plaintiff, a pedestrian, who, while attempting to cross Lexington avenue, in Passaic, came into collision with a bus of the Public Service Transportation Company.

The reasons urged for making the rule absolute are six in number, four of which pertain to rulings by the trial judge on evidence and a portion of the charge, and the remaining two that the verdict was against the weight of the evidence and the result of mistake, passion, prejudice or partiality. In three of these leading questions propounded by the plaintiff’s counsel in the direct examination were overruled by the court. The questions objected to were clearly leading and were properly excluded. The fourth point presents the refusal of the court to strike out an answer to a question put to a witness for the defendant on cross-examination. The answer was substantially a characterization by the witness of testimony already given by her and from it the defendant suffered no harm.

The instruction complained of in the charge to the jury was not objectionable. Obviously if, as the instruction required, the driver of the bus was in the exercise of reasonable care he could not be charged with negligence in failing to anticipate that a pedestrian would- come from in front of another bus in the path of the bus he was driving. If he was proceeding with reasonable care nothing more was required of him. Cairns v. Fox, 118 Atl. Rep. 453.

The final contention that the verdict was so clearly against the weight of the evidence as to require a new trial is without merit.- There was a sharp conflict in the testimony as to liability, and in finding against the plaintiff the jury had ample justification.

The rule is discharged.