Citation Numbers: 7 N.J. Misc. 1043
Judges: Cueiam
Filed Date: 11/14/1929
Status: Precedential
Modified Date: 7/25/2022
The case comes up on, rule to show cause why a verdict rendered in the Passaic Circuit for the defendant, and against the plaintiffs, should not be set aside. The plaintiffs are mother and son respectively, the latter being the owner and driver of an automobile in which the former was sitting asleep on the back seat at the time of a collision with an automobile driven by the defendant. The plaintiffs argue two points: the first being that the verdicts were clearly contrary to the weight of the evidence, and the second being that the court erred in charging the jury.
The portions of the charge to which plaintiffs object had to do with the relationship of master and servant as between the mother and son and the liability of the mother, if such relationship existed, to be charged with any negligence of ‘which the son may have been guilty. The respondent declines
A portion of the charge argued by the appellants to be objectionable is as follows:
“Now, as to the mother. She was riding, as I recall the testimony, in the rear of the car, and asleep at the time. The son, as I recall it, says that at the request of the mother he had taken her to meet some friend in Newark and was bringing her back. He was, of course, not a public taxi cab driver, but nevertheless, if the mother requested him to take her to Newark on this occasion and bring her back, then he became her agent or servant in the law, and if he were guilty of contributory negligence on that occasion, then his negligence would be attributable to his mother, which would make her responsible for any contributory negligence on his part * *
The plaintiff John L. Rahrer was the sole owner of the automobile. There is no evidence that he was subject to the command or control of his mother. The mother wished to make a call upon friends and asked her son to take her. A part of the evidence is that given by the son. “Q. You did it for your mother, of course? A. Well, she wanted to visit this party and she wanted me to go; well, all right, I went with her.” There is no suggestion that the mother selected the route or participated, either by act or suggestion, in the control or management of the car.
In the case of Tronto v. Reo Motor Co. (Court of Errors and Appeals), 92 N. J. L. 595, a part of the facts are thus stated: “The reason upon which this contention [viz., control of the car by plaintiff’s decedent] is based is that the deceased, desirous of visiting a friend at Plainfield, induced his brother, the owner of the car, to drive him there, and while driving on West Eront street, near Grant avenue, in that city, collided with defendant’s truck driven at a high rate of speed.”
The rule will be discharged as to John L. Rahrer and made absolute as to Magdalina End.