Cohen v. O'Brien

Per Curiam.

This is defendant’s appeal from a judgment for $500 for the plaintiff in the First District Court of the city of Newark, rendered by the judge, sitting without a jury.

The plaintiff was driving his truck along the roadway in the freight yard of the Central railroad, Newark, and as he was making a turn, defendant’s truck collided with him and damaged plaintiff’s truck.

According to plaintiff’s testimony, he Was driving in second gear, at eight miles an hour, on the right-hand side of the roadway; that on his right was a line of freight cars shutting off his view to the right; that as he approached the westerly end of the cars, around which he intended to pass to the right, he sounded his horn; that when about half way around the turn he first saw the defendant’s truck about five feet away, moving in a southerly direction at the rate of twenty to twenty-five miles an hour; that plaintiff was well over on the right-hand side of the road, and was unable to get out of the way; that he stopped his machine, and was standing still at the time of the collision; that the left wheel of defendant’s truck collided with the front of plaintiff’s machine. •

The first point made is that the judge should have found for the defendant upon the ground (1) that there' was no evidence of the negligence of the defendant, and (2) that contributory negligence of the plaintiff was conclusively shown. It is sufficient to say that both questions were jury questions, -and the decision thereof by the,.trial judge will not be disturbed.

• The next point is that the judge erred in awarding $500 damages. We think not. The testimony permitted of -the inference that such sum represented the difference in value of plaintiff’s truck immediately before and immediately after the accident. 1

Lastly, it is argued that the trial judge had no jurisdiction to hear the case without a jury, because a demand for a jury had' been made before the trial.' 'We think there is no merit in this argument — -first, because the defendant went to trial without any objection, and, secondly, because such action is not specified as a cause for reversal.

The judgment will- be affirmed, with costs.