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Branigan v. Demarest

Decided: May 16, 1932.

FLORENCE BRANIGAN, APPELLANT,
v.
ARTHUR W. DEMAREST, RESPONDENT



On appeal from the Supreme Court.

For the appellant, Kinkead & Klausner.

For the respondent, Reginald V. Spell.

Wells

The opinion of the court was delivered by

WELLS, J. This is an appeal from a judgment of nonsuit in the Hudson Circuit of the Supreme Court.

The plaintiff-appellant, Florence Branigan, brought an action against the defendant-respondent, Arthur W. Demarest, to recover damages for personal injuries she sustained in a collision with the defendant's automobile.

The trial court directed a nonsuit on the ground that the plaintiff was guilty of contributory negligence.

The propriety of this ruling is the only point involved in the case.

This court has held in Fox v. Great Atlantic and Pacific

Tea Co., 84 N.J.L. 728, and in a long line of similar cases, that negligence and contributory negligence are pre-eminently questions of fact for the jury, and that unless it is established by the evidence beyond fair debate that the plaintiff injured by a collision in the street was guilty of negligence which directly contributed to the injury complained of, defendant's motion to nonsuit or direct a verdict on the ground of contributory negligence will be denied.

On the other hand this court has held in New Jersey Express Co. v. Nichols, 33 N.J.L. 434, and numerous other cases, that if it appears by the plaintiff's evidence when he rests his case, that his own negligence contributed to the injury in such a manner that if he had not been negligent, he would have received no injury from the negligence of the defendant, it is the duty of the court to nonsuit; and that if the injury was contributed to in this sense by the plaintiff's negligence, the comparative degrees of the negligence of the parties is immaterial. If the injury was occasioned in any ...


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