Iannicelli v. Benvenga

123 A. 882, 99 N.J.L. 506, 1924 N.J. LEXIS 173

• Court: Supreme Court of New Jersey
• Decided: March 3, 1924
• Status: Published

Opinion

Pee Ctjkiaii.

These three actions were tried together at the Monmouth County Circuit and plaintiffs have verdicts upon which judgments have been entered.

The actions were for damages growing out of the alleged negligent operation of a motor vehicle of defendant in which plaintiffs were riding as invitees of defendant.

The first reason for reversal is, because the trial judge before whom the cause was tried erroneously refused to charge defendant’s fifth request to charge, as follows:

“A guest entering an automobile takes it and the driver as they are, and the driver and owner are not liable for injury to such guest in the absence of proof of active negligence; that is, some extra danger or extra hazard brought about by the negligence of the owner or drive] of the car.”

This request, taken abstractly, is not a correct statement of the law and it was therefore not error to refuse to charge it.

The second and only remaining reason for reversal is, because the judge before whom said case was tried erroneously charged the jury as follows:

“Now, this defendant had what duty? lie had the duty of driving that car at such a rate of speed as a reasonably prudent man would have driven it at the time and place and under the circumstances, and if he failed to do so or did that so far as the speed and the handling and operating of this car was concerned, at the time, place, and circumstances as a reasonably prudent man would have done or would not have done, then he is guilty of negligence.”

The judgments below will be affirmed, with costs.

Anna Iannicelli v. Benvenga—

For affirmance — The Chancellor, Chief Justice, Parker, Minturn, Kalisch, Black, Katzenbaci-i, Campbell, Gardner, Van Buskirk, Clark, JJ. 11.

For reversal — Eone.

Peter Iannicelli v. Benvenga—

For affirmance — Ti-ie Chancellor, Chief Justice, Parker, Minturn, Kalisch, Black, Katzenbaci-i, Campbell, Gardner, Van Buskirk, Clark, JJ. 11.

For reversal — None.

Vincenza Benvenga v. Benvenga—

For affirmance — The Chancellor, Chief Justice, Tren■ci-iard, Parker, Minturn, Kalisch, Black, Katzenbaci-i, ■Campbell, Gardner, Van Buskirk, Clark, JJ. 12.