Citation Numbers: 98 N.J.L. 332
Judges: Trenchard
Filed Date: 3/12/1923
Status: Precedential
Modified Date: 9/9/2022
Crescenzo Lombardi was riding in an automobile, driven by the owner thereof, one Coppola, along Bergen avenue in Jersey City, at nine-thirty p. m., on November 8th, 1921. The automobile collided with a pile of bricks placed in the roadway by Esidore Yulinsky, a contractor, engaged in erecting an apartment house at that point, and Lombardi was killed in the collision. The plaintiff, as administrator ad prosequendum of decedent, brought this action under the Death act (Comp. Stat., p. 1907) and supplement (Pamph. L. 1917, p. 531) for damages, and recovered a verdict. At the trial the evidence tended to show that there was no light upon this, pile of bricks to indicate the presence of danger to travelers on the highway.
The first reason why we are a Led to set aside the judgment entered on the verdict is that it was error to permit one of the decedent’s children (who was an adult and married) to testify that on one occasion, a few years before the death of the decedent, he had assisted the witness, his son, financially in purchasing a house by a gift of $800. The testimony was offered, of coarse, for the purpose of supporting the claim that pecuniary injury had been sustained. The argument is that it was incompetent for that purpose. Not so. In estimating the damages in an action for wrongful death, the jury may properly c.onsider gifts made by the decedent, prior to his death, to the beneficiaries in the action, and evidence thereof is admissible, even though such beneficiaries are adults and married. Demarest v. Little, 47 N. J. L. 28; Polo v. Palisade Construction Co., 75 Id. 873; Smith v. Barnard, 82 Id. 472.
The next point is that there was error in the cross-examination of the defendant. The defendant had testified that invariably he himself installed danger lights on this pile of bricks, except on Friday and Saturday nights, when he always instructed his watchman to do it. In this situation he was asked this question, on cross-examination: “Did you not put a light there on that pile of bricks after the accident ?”
The next point is that the court erroneously permitted a witness called by the plaintiff to testify with relation to the non-existence of these lights on nights preceding the accident. The testimony was avowedly offered and admitted solely for the purpose of affecting the defendant’s credibility as a witness, and, like the earlier question, was competent for that purpose.
The next point is that the trial judge erred in refusing to direct a verdict for the defendant. We think not. This contention is predicated upon the theory that the decedent’s death was caused solely by the negligence of the driver of the automobile in which he was riding. But that is not so. At best for the defendant it was caused by the combined negligence of the driver and of the defendant. If the negligence of the driver be conceded, then the evidence tended to show that the accident was caused by the joint negligence of the driver in not keeping a proper lookout, and of the defendant in not properly warning travelers on the highway of the danger threatened by the existence of the pile of .bricks. Of course, if two or more persons, though
The foregoing conclusions in effect dispose of every question raised and argued, including the refusal of the requests to charge.
The judgment will be affirmed, with costs.