On appeal from the Supreme Court.
For the appellant, John A. Laird.
For the respondent, William Herda Smith.
The opinion of the court was delivered by
CAMPBELL, CHANCELLOR. This is an appeal from a judgment in favor of the plaintiff below, who, while crossing a highway, was struck and injured by an automobile operated by one Philip Canizza, one of the defendants below. The Saunders U-Drive Company alone appeals from the judgment and assigns three grounds why such judgment should be reversed.
The first of these grounds is that the trial court erred in refusing to nonsuit the plaintiff.
The only reason advanced upon this motion was that the plaintiff below was guilty of negligence, as a matter of law, which negligence contributed to the happening.
Our consideration of the proofs does not bring us to this conclusion, but, on the contrary, that they presented a jury question. The result reached by us upon this ground, therefore, is that there was no error in refusing to grant the motion to nonsuit.
The second ground for reversal is that the trial court erred in refusing to direct a verdict in favor of the appellant.
In that respect we find there was error. The motion to direct was placed upon the ground that there was no proof showing that the appellant was in any manner responsible or legally liable for the happening. The driver of the car testified that he hired the car from the appellant and that in the use and operation of the car he was in and about his own business affairs and pleasure.
The learned trial judge took the position that, it having been shown that the car was owned by the appellant, and the testimony of the driver, being all that there was to overcome the presumption that it was being operated for the owner as laid down in Mahan v. Walker, 97 N.J.L. 304, and his veracity having been attacked by contrary proofs upon the question of his negligence, it therefore became a jury question whether or not his testimony upon the point in question was true and overcame the foregoing presumption.
But we conclude that in this respect the trial judge was in error and misconstrued our conclusions ...