On appeal from the Passaic County Court of Common Pleas.
For the defendant-appellant, Charles C. Stalter.
For the plaintiff-respondent, Marcus & Levy (Louis Santorf, of counsel).
Before Brogan, Chief Justice, and Justices Trenchard and Parker.
The opinion of the court was delivered by
TRENCHARD, J. This is the appeal of the Alexander Hamilton Garage, Incorporated, one of the defendants below, from the plaintiff's judgment against it and its employe (the latter not appealing).
The plaintiff's case was that he was severely injured while sitting on the curbstone, with his feet in the gutter hard by the curbstone, when an automobile driven by the defendant Davis, an employe of the defendant garage company, suddenly backed down upon the plaintiff without any warning whatsoever. The defendants rested without submitting any evidence.
The only point argued by the appellant is that "the court below erred in refusing to direct a verdict in favor of the defendant Alexander Hamilton Garage, Incorporated," (all other points made in the brief having been expressly abandoned).
We now look at the reasons urged in the trial court for the direction of a verdict and find that they are these, and these only: (1) that the driver of the car was not the agent of the defendant garage company; (2) that he was not negligent, and (3) that plaintiff was guilty of contributory negligence.
We think the motion was rightly denied.
The evidence in broad outline tended to show among others, the following pertinent matters of fact. The plaintiff, a workman sixty-four years old, was returning home from his heavy work and stopped at a public bus stand at 160 Market street, Paterson, to wait for a bus. Having waited about seven minutes he became tired and sat down on the curbstone
near the middle of the public bus station area (marked at both ends by the bus station signs). On his right was the automobile parked, with the motor silent, about six feet away, which later backed down upon him. That automobile belonged to one Goldie, who for years had a contract with the defendant-appellant to store and service the automobile and to bring it to his office, 160 Market street, when so directed, and on the day in question it had been brought there as usual by Davis, an employe of the defendant, pursuant to instructions. Plaintiff sat there about three minutes "looking all around" with his interest centered to the street watching for his bus, when, without any adequate observation on the part of the driver to see if the way was ...