Opinion
Submitted May 31, 1929 —
Decided October 14, 1929.
Where, in an action for damages arising from a collision between plaintiff's automobile and defendant's truck, arising from alleged negligence upon the part of the defendant, driver of the truck, the whole defense consisted in a denial that the collision did in fact occur, it was not error in the absence of a request for specific instructions on the subject of contributory negligence for the trial judge not to give the jury instructions upon that subject, nor was it an abuse of judicial discretion to decline to hold the jury and give such instructions, when the absence thereof was called to the attention of the trial judge after the delivery of the charge.
On appeal from the Supreme Court.
For the appellant, Schneider Schneider ( William P. Braun, of counsel).
For the respondent, Breslin Breslin.
This was an action in the Supreme Court for damages to the plaintiff's automobile resulting from a collision on the public highway between it and defendant's truck, because of the alleged negligence of the defendant in the operation of the truck. The sole defense set up by the evidence of the defendant was an absolute denial of any collision. The trial judge in his charge to the jury gave no instructions on the subject of contributory negligence. It is admitted that he had not been requested to give such instructions. There was, therefore, under our decisions, no error in such failure. Osbun v. DeYoung, 99 N.J.L. 204 .
It is urged, however, that in view of the fact that defendant's answer to the complaint alleged contributory negligence on the part of the plaintiff, the trial judge should have held the jury and given them instructions upon this subject, when, at the end of the charge, counsel for the defendant called his attention to his failure to so charge. We think under the circumstances here involved, as above noted, and in view of the fact that the only defense as set up by the evidence was a denial of the collision which was the foundation for the action, that it was within the discretion of the trial judge and that there was no abuse of such discretion in his refusal to accede to the suggestion of defendant's counsel in this respect.
The judgment appealed from is therefore affirmed. For affirmance — THE CHANCELLOR, CHIEF JUSTICE, TRENCHARD, PARKER, KALISCH, BLACK, CAMPBELL, LLOYD, CASE, BODINE, WHITE, VAN BUSKIRK, McGLENNON, KAYS, HETFIELD, DEAR, JJ. 16.
For reversal — None.