Smith v. Brunswick Laundry Co.
93 N.J.L. 436
N.J.
1919
Check Treatment

The opinion of the court was delivered by

Black, J.

The defendant was sued in the Hudson Circuit Court to recover damages under the Death act, for causing the death of Ethel Smith, a minor three and a half years old, on the afternoon of September 23d, 1918, on Romain avenue, in Jerse3r Citju The trial resulted in a verdict for the plaintiff. The child met her death by a backing of an automobile truck, or closed electric delivery wagon, upon her, owned by the defendant, and operated at the time by its servant.

*437There are four grounds of appeal, of which the first three are: The verdict is contrary to the evidence; it is contrary to the charge of the court; and the damages are excessive. These are not proper grounds of appeal. They are matters pertinent for a rule to show cause on an application for a new trial. This court has. no power to review or determine the weight of evidence (Savino v. Goldberg, 92 N. J. L. 617), or consider whether the amount of the verdict is excessive. Flanigan v. Guggenheim. Smelting Co.,-63 Id. 647. The only other ground of appeal is that the jury was prejudiced against the defendant, by the remarks of counsel for the plaintiff in his summing up to the jury. Turning to the record it discloses that objectionable remarks were made by the plaintiff’s counsel concerning the defendant’s counsel’s failure to produce a picture or photograph of the automobile truck or closed electric delivery wagon, which was the cause of the child’s death. The photograph, it was remarked, would show the size and kind of car and how high it was from the ground. “Mr. Hauser — How, if your Honor please, I wish to ask for a non-suit and the withdrawal of a juror.” The trial court refused it. The first was not error and the latter was discretionary with the trial judge. This refusal by the trial judge, which was discretionary, is not a ground for reversal. The correct practice in such a situation is pointed out by Chief Justice Gummcrc in the ease of Blackman v. West Jersey, &c., Railroad Co., 68 Id. 1, 1-, in which he quotes at length from the case of Williams v. Brooklyn Elevated Railroad Co., 126 N. Y. 96, from the Hew York Court of Appeals. The practice, there stated and commended, was restated with approval by Mr. Justice ICalisch in the case of See v. Public Service Railway Co., 82 N. J. L. 146. There it is stated counsel should have made a request to the court, either to admonish plaintiff’s counsel or to charge the jury to disregard the objectionable remarks. A failure to so do, by the trial court and exception thereto, would lay the basis for a valid assignment of error. It is the plain duty of the court, upon objections made, to interpose and a refusal of the court, to interpose, where otherwise the right of the party would he prejudiced, is ground for *438legal error. There was, however, no refusal of the court to interpose in this ease. The trial court did, in fact, after refusing the above motion, admonish the plaintiff’s counsel.

This point was discussed in the case of State v. Terry, 91 N. J. L. 539, 543. See, also, Hahn v. Delaware, &c., Railroad Co., Id. 277; post p. 463.

We may add, however, that while the remarks of counsel objected to were improper, they were not such as should cause a reversal of the judgment.

The judgment will therefore be affirmed.

For affirmance — Ti-ie Chancellor, Cj-tiee Justice, Swayzé, Trenchard, Parker, Bergen, Minturn, ICalisoh, Black, White, Heppéni-ieimer, Williams, ■ Gardner, Ackerson, JJ. 14.

For reversal — None.