On appeal from the Essex County Circuit Court.
For the defendant-appellant, Kellogg & Chance.
For the defendant-respondent, McCarter & English.
For the plaintiff-respondent, James P. Mylod.
The opinion of the court was delivered by
WELLS, J. This is an appeal by the defendant-appellant, Schwartz Brothers Truckmen, Incorporated, from a judgment entered against it on a verdict rendered by a jury for $2,000 in a case tried at the Essex Circuit.
The case arose out of an automobile accident. The suit was brought by plaintiff against two defendants, Jacobus, in whose car the plaintiff was riding as an invitee, and the Schwartz Brothers Truckmen, Incorporated, the owner of the truck which was hauling a trailer which it is alleged swerved and struck the Jacobus car as it was passing, and injured plaintiff.
The jury found in favor of the defendant Jacobus.
The only grounds upon which we are asked to reverse the judgment under review, are that the trial court erred in refusing to nonsuit the plaintiff, and also in refusing to direct a verdict in favor of the defendant-appellant.
Plaintiff contends that defendant-appellant is precluded from arguing before this court these grounds of appeal because a rule to show cause why a new trial should not be granted was allowed, and one of the reasons assigned was that the verdict was contrary to the weight of the evidence, and that the questions of nonsuit and direction of a verdict are embraced within the reason that "the verdict is against the weight of
the evidence" is well settled law as shown by Klein v. Shryer, 106 N.J.L. 432; Catterall v. Otis Elevator Co., 103 Id. 381; Cleaves v. Yeskel, 104 Id. 497, and Holden v. Rolff, 110 Id. 499.
An examination of these cases will disclose that the reasons assigned on the rules were argued, considered and decided on the return thereof. Here, however, the rule was never argued on any point and no adjudication whatever was rendered. The amended order dismissing the rule to show cause recites that on the return day thereof, the attorneys of appellant indicated to the court that appellant had decided not to prosecute said rule but to take an appeal upon the exceptions reserved in the rule, and that "whereas on the return day of said rule to show cause the rule was not argued nor was the matter considered," therefore, it was ordered that the original order heretofore entered, dismissing the rule to show cause, be amended "to provide that said rule was abandoned and said order of dismissal was signed and entered without argument of either or any of the reasons advanced in support of said rule."
The attorney of plaintiff-respondent consented to the making and entry of said amended order.
Respondent cites in support of his contention the following excerpt from Margolies v. ...