On appeal from the Supreme Court.
For the defendant-appellant, Henry K. Golenbock.
For the plaintiffs-respondents, Quinn, Parsons & Doremus.
The opinion of the court was delivered by
WELLS, J. This is an appeal from a judgment entered in the New Jersey Supreme Court on a verdict rendered by a jury in favor of the plaintiffs and against the defendant.
The case arose out of a collision of an automobile operated by defendant and a motorcycle upon which the infant plaintiff was riding.
Appellant argues two points for reversal:
1. The trial court erroneously instructed the jury.
2. The trial court erred in refusing to nonsuit the plaintiff and direct a verdict for defendant.
We shall consider the second point first.
At the conclusion of the plaintiff's case, defendant's counsel made a motion for a nonsuit on the ground that there had been no negligence shown on the part of the defendant and that the question of contributory negligence of plaintiff was a matter of law for the court to decide.
At that time there had been testimony to indicate that the plaintiff's motorcycle was being driven at a reasonable rate of speed on Stone road, Raritan township, immediately prior to the accident; that it was approaching the intersection of Stone road with Florence avenue, at approximately twelve to fifteen miles an hour; that it was properly lighted and that at the time of the crash the motorcycle of the plaintiff was further across the intersection than the car of the defendant.
There was additional evidence that immediately prior to the accident the car of the defendant was being operated on the left-hand side of the highway and was traveling at a speed of approximately sixty-five miles an hour; that as it approached the intersection it made a sharp swerve towards its right-hand side, that at this time the motorcycle of the plaintiff was almost across the road when the car of the defendant struck it, as it was about to leave the intersection.
There was evidence that the plaintiff was thrown a distance of approximately twenty feet in the direction in which the defendant was going and the car of the defendant continued after the collision to go on for about thirty or thirty-five feet and then struck a culvert and upset; that there were skid marks approximately ...