Kimble v. Kavanaugh

Jun 4, 1924

Versions:2 N.J. Misc. 482

1924 N.J. Sup. Ct. LEXIS 139

Per Curiam.

Thе rule contains the following reservation: “That the defendants be pеrmitted to reserve the exceptions taken at the trial to the refusal of the court .to direct a verdict ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍in favor of said defendants, and to the court’s charge^ and that this rule will not preclude the taking of an appeal by said defendants on the reserved exceptiоns.”

' The action was brought to recover compensation for injuriеs received by the plaintiff while driving along a public highway, in the borough of Sussеx. The defendants at the time of the accident were engaged in reconstructing a portion of this highway, under a contract with the state, аnd were operating a steam shovel in furtherance of the work. As the automobile ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍in which the plaintiff was riding, and which was being driven by her husband, was abоut to pass the steam shovel, the latter was swung, across the road by ■defendants’ employes, and collided with the automobile, inflicting injuries upоn Mr. Kimble, from which he died, and also inflicting the injuries upon Jessie Kimble, for which she brought this action.

*483The first ground upon which it is sought to make the rule absolute, is thаt the plaintiff at the time of the accident was a licensee оn the road, to whom the defendant owed only the duty to refrain from aсts willfully injurious. This point ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍obviously is directed to' the charge of the court to which exception was noted, and as all the exceptions takеn at the trial to the court’s charge are reserved from the oрeration of the rule, this point cannot now be considered.

It is next urged that it was error for the trial court to charge the jury that it must consider .whether or not it was negligent on the part of the defendants ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍to permit the steam shovel to be operated without' a warning to people traveling on the highway. For the same reason this point cannot nоw lie considered.

It is also urged that the trial judge erred in refusing to chargе the defendants’ first request, which was that “if Mrs. Kimble went riding with her husband, knowing that he was under thе influence of liquor to such an extent as to render him incapablе of exercising the degree of care required of a sober man in the same circumstances, her act in doing so was contributory negligеnce, which would bar her from recovery.” This request, not being within the reservation, may be considered with the general observation that the requеst was ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍properly refused. It does not specify what the “circumstances” are to which the request applies. Kor is it apparent thаt the wi fe’s driving with her husband while he was intoxicated was contributory negligence, unless it was a contributory cause to the accident: the fact thаt the husband was intoxicated, it is manifest from the record, had no relatiоn to the accident, and it is not contended that he did anything, or omitted to do anything, which a sober man would not have done, or omitted to do, under the same circumstances.

It-is argued that the road was closed tо public travel, but the proof preponderates to the cоntrary, and whether Mr, Kimble was guilty of reprehensible conduct in driving along this roаd, which a sober man would not have been guilty of, would depend, to somе extent, at least, upon this controverted question of fact.

*484Finally, it is urged that the verdict is excessive,- but in this we do not concur. The plaintiff suffered a broken right wrist, and her left arm was fractured at the elbow joint, and, in addition, she received serious bruises. She was a wage-earner, and her injuriеs incapacitated her from earning her living for a period of three months. It is quite apparent that her injuries are permanent, and prevent the full use of either’ arm.

The rule will be discharged.