
    FRANCISCO FIUMEFREDDO v. SARAH SPELLMAN ET AL.
    Decided February 18, 1931.
    Before Gummeke, Chief Justice, and Justice Campbell.
    For the rule, George S. Hobart and John H. Selser.
    
    
      Contra, Alexander Simpson.
    
   Pee Cuetam.

Plaintiff while, or immediately after, alighting from a trolley car at Avenue C and Fifteenth street, in Bayonne, was struck down by one, or the other, of two trucks that were proceeding in the same direction as the trolley car on which he had been a passenger.

He was severely injured and brought suit against three parties. Plaintiff was the only party appearing and defending.

The action resulted in a verdict in favor of the plaintiff and the defendant has this rule under which she is seeking to set aside such verdict, urging and arguing twelve reasons under five points, viz.:

1. The defendant’s motion for nonsuit and directed verdict should have been granted on the ground that there was no evidence of negligence chargeable to the defendant within the issues raised by the pleadings.

2. The defendant’s motions for nonsuit and directed verdict should have been granted on the ground that the plaintiff was guilty of contributory negligence.

We find no error under either of these grounds. There was proof of negligence requiring submission of the cause to the jury and the question of the negligence of the plaintiff was one likewise requiring a finding by that body.

3. The trial judge erroneously submitted to the jury issues of negligence not charged in the pleadings.

4. The trial judge erroneously instructed the jury with respect to the duty of the defendant’s servant to give warning under the circumstances developed in the evidence.

Eeading the charge with the complaint and the proofs we find no such error.

5. The verdict of the jury is against the clear weight of the evidence on the issues of negligence and contributory negligence.

We do not reach this conclusion.

The rule to show cause will be discharged, with costs.  