
    THOMAS HURLEY, RESPONDENT, v. PUBLIC SERVICE RAILWAY COMPANY, APPELLANT.
    Argued May 22, 1928
    Decided October 15, 1928.
    For the appellant, William H. Speer.
    
    For the respondent, John J. Carlin.
    
   The opinion of the court was delivered by

Campbell, J.

Respondent was driving a horse-drawn truck, easterly, along the northerly side of Pavonia avenue, toward the Erie ferry in Jersey City. There had been a heavy downpour of rain, and, for some distance from the ferry entrance, the street was covered with water. He was driving in this particular part of the roadway because it was in better condition than other portions. At a point about three hundred feet from the ferry there is a switch, or cross-over, in the tracks of the appellant company. When one of the front wheels of the truck struck this point the truck was suddenly jerked, the horse thrown toward the right, and the rear portion of the truck in the opposite direction. Respondent was thrown from the truck to the roadway and the rear wheel of the truck passed over his leg causing injuries thereto requiring amputation below the knee.

At the trial of an action for damages motions for nonsuit and direction of verdict, upon the ground of lack of proof of negligence, and that respondent was shown to have been guilty of contributory negligence were denied, and the exceptions to such rulings by1 the trial court form the bases of the present appeal.

The cause was submitted to the jury upon the theory that there was evidence that brought it within the rule laid down by this court in Geise v. Mercer Bottling Co. et al., 87 N. J. L. 224.

This we conclude was correct, and that the eases of Johnson v. Public Service Railway Co, 83 N. J. L. 647, and Fielders v. North Jersey Street Railway Co., 68 Id. 343, relied upon by the appellant, are not controlling if the proofs bringing the cause within Geise v. Mercer Bottling Co., supra, were found to be true, as they were, by the jury.

The judgment below is affirmed, with costs.

For affirmance — The Chiee Justice, Trehchard, Parker, Mihturh, Kalisci-i, Black, Campbell, Lloyd, White, Yah Buskirk, Heteield, Dear, JJ. 12.

For reversal — Katzehbach, Kays, JJ. 2.  