Decided: February 4, 1931.
ANNIE BENNETT AND PHILIP C. BENNETT, HER HUSBAND, RESPONDENTS,
MARIA CECELIA DERIVAUX HINRICHSEN, JOHN A. DERIVAUX, MARIA KATHRYN DERIVAUX, ALOYSIUS J. DERIVAUX AND CHARLES HUBERT DERIVAUX, APPELLANTS
On appeal from the Supreme Court, whose per curiam is printed in 8 N.J. Mis. R. 131.
For the appellants, Samuel D. Williams and Wolber & Gilhooly.
For the respondents, Donald B. Munsick and Fred G. Sticket, Jr.
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The action was to recover damages for injuries received in a fall upon a common stairway in an apartment house which it was alleged the defendants negligently failed to keep in repair. There were verdicts for the plaintiffs and the defendants appeal, claiming that the woman plaintiff was guilty of contributory negligence and that there should have been a nonsuit in consequence. A rule for new trial was allowed, argued and disposed of in the Supreme Court.
One of the reasons set forth in the rule was that the verdicts were against the weight of the evidence. In the case of Cleaves v. Yeskel, 104 N.J.L. 497, 501, this court said:
"A reason assigned for a new trial, that the verdict is contrary to the weight of the evidence, which reason was argued, considered and decided on the return of the rule, is necessarily embraced within the exceptions to the refusal to nonsuit and to direct a verdict on the ground that there was no evidence of defendant's negligence, and that the contributory negligence of the plaintiff conclusively appeared,
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which were reserved in the rule, and, therefore, such exceptions cannot be considered on appeal."
See, also, Goekel v. Erie Railroad Co., 100 N.J.L. 279, and Margolies v. Goldberg, 101 Id. 75, in which cases this court declared that "it is to be presumed that each and every reason (for new trial) was argued, but whether so or not, all the reasons in support of the rule, as an effect of the order (discharging it) are res adjudicata."
The present appeal comes squarely within the rule thus enunciated. Under the reason assigned in the rule that the verdicts were against the greater weight of the evidence the appellants were at liberty to, and presumably did, urge that the verdicts were against the weight of the evidence on the contributory negligence of Mrs. Bennett, and thereby waived the right to a review by appeal based on the ground that there should have been a nonsuit because of such contributory negligence.
The judgment is affirmed.
For affirmance -- THE CHIEF JUSTICE, TRENCHARD, PARKER, CAMPBELL, LLOYD, CASE, BODINE, DALY, DONGES, VAN BUSKIRK, KAYS, HETFIELD, DEAR, WELLS, JJ. 14.
For reversal -- None.