On appeal from the Supreme Court.
For the defendant-appellant, George L. Burton.
For the plaintiffs-respondents, Theodore Strong & Son (Stephen V. R. Strong and Theodore Strong, Jr.).
The defendant assigns error because the trial court refused at the close of the plaintiffs' case to grant a motion for a nonsuit, because of the plaintiffs' contributory negligence. Plaintiff, an infant, while standing astraddle his motorcycle in the center of that part of Lincoln Highway known as Raritan avenue, in the borough of Highland Park, was thrown to the pavement by the force of the defendant's automobile backing into him. The testimony indicates that the defendant's automobile had come to a stop at a street intersection. The plaintiff brought his motorcycle to a stop about three feet behind the defendant's car. While he was adjusting some materials strapped in the luggage carrier, the defendant, without warning, backed his car into the plaintiff, causing the injuries complained of. Such facts do not show, as a matter of law, contributory negligence as the proximate cause of the
The Traffic act (Pamph. L. 1915, p. 288, § 3) provides: "Before backing, ample warning shall be given, and while backing, unceasing vigilance shall be exercised not to injure those behind."
In view of the language of the statute, the court's ruling seems proper. Melia v. Malicke Bus Co., 7 N.J. Mis. R. 860.
The judgment is affirmed.
For affirmance -- PARKER, LLOYD, CASE, BODINE, BROGAN, HEHER, VAN BUSKIRK, KAYS, HETFIELD, DEAR, JJ. 10.