On appeal from the Essex County Circuit Court.
For the plaintiff-appellant, Silber & Silber.
For the defendant-respondent, Chester W. Rothfuss.
The opinion of the court was delivered by
RAFFERTY, J. This is an appeal from a judgment entered upon a verdict directed in favor of respondent in the Essex County Circuit Court.
The action is based upon injuries alleged to have been sustained by appellant because of the negligent operation of an automobile owned and operated by respondent while appellant was a passenger therein at the invitation and request of respondent.
At the close of appellant's case respondent offered medical testimony only and rested. Respondent then moved for direction
of verdict on the ground that no proof of any negligence had been made by appellant. After argument by counsel, the court granted the motion for direction of verdict. Exception to this action by the trial court being properly taken the sole ground of appeal assigned is that the trial court erred in directing a verdict in favor of the defendant (respondent) and against the plaintiff (appellant).
Appellant, a midget, professionally employed, and respondent had attended an affair at a club of which respondent was a member. As respondent was leaving the club, after midnight, he invited appellant to go along with him. Appellant agreed and was seated in the back of the automobile when the occurrence, described in the testimony given below, happened. Appellant was thrown from the rear seat of the automobile against the back of the front seat and sustained certain injuries.
The only testimony offered as to the alleged negligence of respondent was that given by appellant himself, pertinent parts of which are as follows:
"Q. What happened? A. Well, we were driving not very fast but all of a sudden the car went over something. I don't know what happened, and I went flying toward something and you know I got hit, so what happened I don't remember."
"Q. What did he [respondent] tell you happened? A. Well, it happened how he went over the bump; after he went over it, why he put the brakes on. Q. ...