Jackson v. WeylJackson v. Weyl
The opinion of the court was delivered by
This аction arises out of injuries sustained by the plaintiff on June 20th, 1925, while crossing over Bloomfield avenue at the intersection of Main avenue and Bloomfield avenue, in the city of Passaic, New Jersey. The accidеnt happened in the evening while the plaintiff was walking along Main avenue, and crossing Bloomfield avenue, toward her home. The automobile of the defendant, and driven by him, struck her while she was crossing, threw her to thе ground and injured her. The jury found a verdict for the plaintiff, and the defendant аppealed from the consequent judgment.
The grounds of appeal relate solely to the charge of the court. Such grounds as are supported by exceptions will now be considered.
The court charged:
“Now, the law of this state is that a pedestrian has the right of way over a vehiclе at street crossings where the houses on the average are lеss than one hundred feet apart, as it is agreed in this case they are at that location, and, *308 therefore, where a pedestrian and an automobile, moving in different directions, approach such а crossing at the same time or in such a manner that if both continue their respective courses there is danger of a collision, then the рedestrian is entitled to the first use of the crossing; and it is the duty of the driver of thе automobile to stop or to so reduce his speed as to avoid and give such pedestrian reasonable opportunity to рass in safety, and to that end to have such automobile under such control as .to enable him to do so, and • a disre- • gard of the pedestrian’s right of way, due to excessive speed, while not conclusive as tо the driver’s negligence, is a factor in the situation, which, considered as a whole, presents a jury question as to the negligence of the driver in case of an injury to the pedestrian by an automobile-so driven.”
In view of the provision of our Traffic act (Pamph. L. 1915, p. 305, § 25; Pamph. L. 1916, p. 49, § 12) providing, in effect, that in places where the houses are on the average less than one hundred feet apart pedestrians shall have the right of way over vehicles at any street crossing, in the absence of any municipal regulation relating to such crossing, that charge was correct in point of law (Venghis v. Nathanson, 101 N. J. L. 110), since it was admitted at the trial that at that place the houses were less than one hundred feet apart, and there was no suggestion that there was any municipal regulatiоn relating to such crossing.
The defendant argues that elsewhere in his charge the judge erroneously instructed the jury that the accident ocсurred at a crosswalk instead of allowing the jury to pass upon such quеstion. But our examination of such of the grounds of appeal as are based upon exceptions discloses that such contention is ill-founded in point of fact.
The real complaint of the defendаnt, as we view his argument, is that the judge failed to instruct the jury as to the law in cаse the jury found that the accident occurred at a place which was not a crosswalk.
To this it might well be answered that at the trial the dеfendant himself testified that the accident occurred while the plаintiff was “walking across this crosswalk.”
But a conclusive answer is that if counsel conceived that a *309 pertinent legal principle had bеen omitted by the judge in his charge, he should have requested the desired instruсtion (Lange v. New York, Susquehanna and Western Railroad Co., 89 N. J. L. 604), and that he did not do. Such an omission to instruct the jury upon a particular point is no ground for reversal, in the absence of a speсific request for the instruction. Geyer v. Public Service Railway Co., 98 N. J. L. 470.
The judgment will be affirmed, with costs.
For affirmance — The Chibe Justice, Trevchard, Parker, Minturk, Kalisoh, Black, Katzenbach, Campbell, Lloyd, White, Yah Buskirk, McGlennon, Kays, Heteield, Dear, JJ. 15.
For reversal — Kone.