
    ANDREW KELLY, PLAINTIFF, v. HANS JOHNSON, DEFENDANT.
    Decided June 17, 1927.
    Negligence — Motor Vehicle Accident — No Error in Refusing Nonsuit, There Being Evidence to Justify a Jury in Finding For Plaintiff — Question of Contributory Negligence One of Dispute, For Jury — Verdict Not Unduly Excessive.
    On defendant’s rule to show cause.
    Before Justices Kalisch, Katzenbacii and Lloyd.
    For the rale, Freeman Woodbridge.
    
    
      Contra. Thomas Brown.
    
   Per Curiam.

This case was tried at the Middlesex Circuit Court and resulted in a verdict of $3,000 in favor of the plaintiff and against the defendant.

The defendant obtained a rule to show cause why a new trial should not be granted.

Under this rule, in his behalf, it is argued — first, that the trial judge erred in refusing to grant a nonsuit, because there was no proof of any negligence on part of the defendant in the operation of his automobile which ran into the plaintiff, and that any injuries which the plaintiff sustained were the result of his sole negligence. Secondly, that the verdict was contrary to law and the weight of the evidence. Thirdly, that the verdict was excessive.

After a careful reading of the testimony, we are satisfied that there was testimony which would have warranted a jury in finding that the injuries to the plaintiff were the proximate result of the defendant’s negligent operation of his automobile, and this being so, the trial judge could not properly take the case from consideration of the jury, and therefore the nonsuit was properly refused. Nor would the trial judge have been warranted to nonsuit the plaintiff on the ground of contributory negligence. The burden of establishing that the plaintiff’s negligence proximately contributing to his injury was upon the defendant. Under the testimony in the present case it was a disputed question of fact, pre-eminently, for a jury to decide. Nor can we say that the verdict is so contrary to the weight of the evidence as to shock the sense of justice.

The point that the verdict is excessive is abandoned in defendant’s brief.

The rule to show cause is discharged, with costs.  