Kopper v. Bernhardt

Per Curiam.

This case comes before this court on appeal from the Supreme Court where it was decided on an appeal from the District Court of the city of Perth Amboy. We have reached the conclusion that the judgment under review should be affirmed, and we are satisfied with the opinion of the Supreme Court, except in one particular. It is this: The Supreme Court observed that it was contended that the driver of respondents’ team was negligent.in not having such a light as is required by the statute, and remarked that the judgment rendered by the District Court was in legal effect a finding against this contention that there was testimony to support such a finding. With this we agree, but, lest the Supreme Court’s deliverance should be understood as requiring that it was necessary under the law, that respondent, in -order to entitle him to recover, should carry a light on his wagon, we desire to point out that that is not, in and of itself, dispositive of the question. In Decou v. Dexheimer, 73 Atl. Rep. 49, it was held that the driver of an automobile on a road sufficiently lighted to see for one hundred and fifty feet was not justified in running down a wagon driven in the same direction, merely because the wagon failed to carry lights, even if compelled to do so. It is true that by act of April 20th, 1909 (Comp. Stat., p. 4470, § 92a), horse-driven vehicles are required to carry one lamp, showing a light visible for at least two hundred and fifty feet in both directions, during certain hours, under a penalty to be forfeited and paid for the use of the township; but this does not entitle the driver of an automobile who runs down a lightless wagon to immunity from damages occasioned thereby. It is not a controlling factor, but only a circumstance to be considered on the question whether or not the wagon driver was guilty of contributory negligence.

This court said, in Ireson v. Cunningham,, 90 N. J. L. 690, that although plaintiff was driving without a light on his wagon in violation of the statute, that fact did not operate to prevent his recovery, if the defendant could see him, and, if he could, the unlawful act of the plaintiff in no way contributed to the accident.

The judgment under review will be affirmed.

For affirmance — The Chancellor, Chief Justice, Swayze, Trenchard, Minturn, Kalisch, Black, White, Heppenheimer, Williams, Taylor, Gardner, JJ. 12.

For reversal — None.