On appeal from the Supreme Court.
For the plaintiff-respondent, Breslin & Breslin.
For the defendants-appellants, Charles Schmidt (Rupert F. Howlett, of counsel).
The opinion of the court was delivered by
WELLS, J. This is an appeal from a judgment of the Supreme Court, Bergen Circuit, entered upon the verdict of a jury in favor of the plaintiff-respondent and against the defendants-appellants, in a suit for damages sustained by plaintiff arising out of an automobile accident.
The grounds of defendants' appeal are: (1) Error on the part of the trial court in refusing to nonsuit; (2) Error in refusing to direct a verdict in favor of defendants and (3) that the verdict was against the weight of evidence. The last ground is, of course, untenable and raises no question for our
determination. Corby v. Ward, 112 N.J.L. 489; 171 A. 813. The basis for the motions for nonsuit and direction of a verdict was that there was no proof, by inference or otherwise, of any negligence on the part of the driver of the automobile. The controversy at the trial was whether the driver was negligent in the operation of the automobile.
At the conclusion of plaintiff's case there had been presented testimony to the effect that at the time of the accident, plaintiff was an invited passenger riding in an automobile owned by the defendant Susie Stoeckert. The automobile, operated by the defendant Susie Kinner, a relative and agent of the defendant owner, was proceeding southerly on a New York state highway, known as Route No. 303, when it suddenly left the highway and overturned.
The accident occurred in mid-afternoon when the weather was bright and clear; the two-lane concrete roadway at the point of the accident was straight and free of traffic. Just before the accident, the plaintiff, who had nothing whatever to do with the driving of the car, was sitting on the rear seat between his wife and the defendant owner of the car, and he was looking at the scenery and not paying any attention to the operation of the car and couldn't say how fast it was traveling, although he didn't think it was going very fast, and, so far as he knew, the driver was looking ahead and paying attention to her driving; he couldn't swear whether the driver was talking to anybody before the accident.
When asked to state what happened, plaintiff said that they were coming along this highway and "the first thing I knew I heard a grinding noise, like on ashes or sand or something, and that is about all I did know until we overturned." He further testified that before the accident they were on the concrete pavement but before the car overturned they went off on the cinder road and after the accident he was lying down on the back seat, his wife was lying on top of him, until they were pulled out of the door of the overturned car, and he was taken immediately to a hospital.
In refusing to grant defendants' motion to nonsuit, the trial court held that the facts brought the case clearly within the rule of res ipsa ...