98 N.J.L. 487 | N.J. | 1923
The opinion of the court was delivered by
This case was tried at the Union Circuit and the plaintiff recovered a verdict which the Supreme Court, on a rule to show cause, set aside upon the ground that the preponderance of the evidence tended to show that the plaintifPs intestate was guilty of contributory negligence. The case was remanded for a. new trial and, by agreement, the testimony in behalf of the plaintiff at the first trial was read in evidence, and thereupon the trial court, assuming that the action of the appellate court in making the rule to show cause absolute amounted to holding that there should have been a nonsuit on the ground of contributory negli
In ordering a judgment of nonsuit the trial court acted on the theory that the supreme court, in making the rule to show cause absolute, determined that the evidence conclusively established the contributory negligence of the deceased, when it only dealt with its weight, and therefore it was error, on the second trial, to nonsuit plaintiff on the same evidence, and for no other reason, because on the rule to show cause the court considered only the weight of the evidence, while to sustain a nonsuit the evidence must be conclusive.
The judgment will be reversed and a venire de novo awarded.
For affirmance — None.
For reversal — Ti-te Chancellor, Chief Justice, Swayze, Teenchard, Parker, Bergen, Kalisch, Black, Katzenbach, White, Gardner, Ackerson, Van Buskirk, JJ. 13.