On appeal from a judgment of the Supreme Court.
For the appellant, Bernard L. Stafford.
For the respondent, Peter J. McGinnis.
The case arose out of a motor vehicle accident in which the plaintiff below sustained personal injuries. There is only one ground of appeal, viz., that the trial court erred in refusing to direct a nonsuit on the ground of contributory negligence.
Taking the plaintiff's version of the affair, as it must be taken under the circumstances, the situation was as follows: the plaintiff and a friend were riding their motorcycles northward on the Paterson-Pompton turnpike, a four-track modern road. The two south-bound lanes, beginning with the westerly one, may be called numbers 1 and 2, and the northbound lanes would 3 and 4. Plaintiff and his friend were riding on number 4, near the summit of a grade, and on a section paved with asphalt, when plaintiff's cap blew off to his left and dropped near the middle of the road. He signaled his friend, and both made a complete turn to the left and came back southward on number 1; and then swung eastward across 1 and 2, in front of two cars south-bound and in sight, and safely. Plaintiff then swung to the north, stopped his motorcycle at the place where his cap lay, and was in the act of picking it up when struck by defendant's south-bound car, which had swerved off lanes 1 and 2 and was wholly or in part on lane 3, a north-bound lane.
The trial judge was of opinion that in that posture of affairs, any question of contributory negligence on the part
of plaintiff was for the jury. This, we think, was manifestly right. Whatever different light was shed on the matter by evidence that came in later, or even by other evidence for the plaintiff inconsistent with the plaintiff's own testimony, could not avail to require the judge to take the case from the jury when the plaintiff rested.
The judgment will be affirmed.
For affirmance -- THE CHANCELLOR, CHIEF JUSTICE, TRENCHARD, PARKER, LLOYD, CASE, BODINE, DONGES, BROGAN, VAN BUSKIRK, KAYS, HETFIELD, DEAR, WELLS, KERNEY, JJ. 15.