Bennett v. Eagleke

148 A. 197, 8 N.J. Misc. 61, 1930 N.J. Sup. Ct. LEXIS 325

• Court: Supreme Court of New Jersey
• Decided: January 13, 1930
• Status: Published

Opinion

Pee Cubiam.

On June 10th, 1928, the plaintiff Margaret Bennett, a minor, was at or near the intersection of Bridge avenue and Catherine street, in Bed Bank. Two cars, one owned by the defendant DeCarlo, and driven by the defendant Eagleke, and the other owned and driven by the defendant Perri, came into collision and the Perri car ran upon the sidewalk, striking down the plaintiff Margaret Bennett, and injuring her. The ■other ear proceeded forward on the roadway. The plaintiff, through her father as next friend, sued to recover for her injuries, and her father, in his own right, sued to recover for the cost of cure of the daughter, &c.

The'daughter has a verdict for $10,000 and the father for $1,722.30.

These verdicts we are asked to set aside for three reasons:

1. Because they are against the weight of the evidence. The principal, if not the sole reason urged under this ground is that the finding, in order to warrant recoveries by the plaintiffs, must have been that at the time of the happening the relationship of master and servant existed as between DeCarlo, the owner of the car, and Eagleke its driver, and such finding is not supported by a preponderance of the proofs.

We think the evidence warranted such finding by the jury.

2. That the verdicts are excessive.

This reason receives no justification from the proofs.

3. Because the verdicts are inconsistent in that they are against the owner of the car only and not against the driver and the owner became liable only by negligence of the driver, imputable to him as the master.

This is not a ground for setting aside the verdicts against the owner and master. Dunbaden v. Castles Ice Cream Co., 103 N. J. L. 427, and cases therein cited.

The rule to show cause will be discharged.