| N.J. | Mar 29, 1928
This is the defendant’s rule for a new trial. The plaintiff, Salvatore Cannazzari, as administrator ad prosequendum, recovered a verdict at the Essex Circuit of the Supreme Court .against the defendant for the death of Stokey Cannazzari.
Of the reasons assigned for making the rule absolute, two are argued. These are that the court erred in its charge to the jury, and that it should have submitted the question of the negligence of ’the deceased, Stokey Cannazzari, to the jury.
Neither of these reasons we think are well founded. The portion of the charge complained of is this: “The defendant was operating a bus which was driven by its employe, Richard Kampf, and, of course, if Richard Kampf was guilty of negligence, the defendant can he held, and so the testimony of the driver is particularly interesting.” It is contended that this charge improperly omitted to instruct the jury as to the
Our examination of the evidence convinces us that the negligence of the defendant, if it existed, was so clearly the cause of the accident that the trial judge was justified in assuming such to be the fact and in refraining from charging otherwise than he did. We also think that contributory negligence of the deceased was not an issue in the case, and, therefore, the trial judge did not err in failing to submit it to the jury. The proofs were that the deceased was riding as a passenger in the rear seat of a Eord touring car being driven by one Sherman. A collision occurred between this car and a bus of the defendant company. There was no evidence upon which it could be held that the deceased was in any wise responsible for the operation of the touring car, or for the accident which caused his death.
The rule for new trial is discharged.