On appeal from a judgment of the Supreme Court (Ocean County Circuit).
For the defendants-appellants, Collins & Corbin (Edward A. Markley and Charles W. Broadhurst, of counsel).
For the plaintiff-respondent, Camp, Lederer & Citta (Percy Camp and Robert A. Lederer, of counsel).
The opinion of the court was delivered by
TRENCHARD, J. This is the appeal of the defendants below from plaintiff's judgment entered upon the verdict of the jury.
At the trial the evidence tended to show (among others) the following matters of fact: In the early hours of the morning of July 9th, 1936 (between one and two o'clock), the plaintiff was driving his automobile at a speed of from thirty-five to forty miles an hour, on state highway No. 4 in Ocean county, commonly known as the Atlantic City Boulevard. The road was paved with twenty feet of concrete with five-foot dirt shoulders on either side. The night was dark but the road was dry. His headlights were burning and lighted up the road about seventy-five feet ahead. The road was straight with a slight up-grade. Suddenly there loomed up in front of the plaintiff a huge object which he said looked like a house, occupying somewhat more than the right-hand side of the road. It turned out to be a trailer, owned by the defendant Groves Company, upon which there were no lights, and which was drawn by a motor vehicle that the defendant Vallaster (an employe of the owner) was driving, and on top of the trailer was some road building machinery including a concrete mixer. The trailer, if moving at all, was moving in the same direction as the plaintiff. When the plaintiff saw this obstruction ahead of him it was about fifty or sixty feet distant. His brakes were in good condition. He immediately applied his brakes hard, which would ordinarily enable him to stop within about seventy-five feet; but notwithstanding the fact that his brakes were on (as shown by the testimony and the skid marks) he collided with the rear of the trailer. This suit was brought by plaintiff to recover for his property and personal injuries sustained in the collision.
The only point made by the defendants-appellants is that the judge erred in denying defendants' motions for nonsuit and for the direction of a verdict, on the alleged ground that plaintiff was guilty of contributory negligence as a matter of law.
It will be noticed that the question of the negligence of the defendants is not raised, since there was abundant evidence of such negligence to the effect that the trailer was not lighted.
We think that the motions for a nonsuit and for the direction of a verdict were properly denied, since the question of contributory negligence was for the jury.
Of course the rule is that unless it is established by the evidence beyond fair debate that the plaintiff was negligent and that the negligence directly contributed to the injury complained of, a motion to nonsuit or direct a verdict upon the ground of contributory negligence will be denied. Fox v. Great Atlantic and Pacific Tea Co., 84 N.J.L. 726.
Also where the existence of contributory negligence upon the part of the plaintiff depends upon the conclusion to be reached from a variety of circumstances considered in relation to and their reaction upon each other, the jury, and not the court, is normally the tribunal to draw such conclusion. Mayes v. ...