
    JOSEPH KELLER, PLAINTIFF, v. JOHN McNULTY, DEFENDANT.
    Decided October 20, 1925.
    Negligence — Motor Vehicle Injury to Invited Passenger — Defendant Warned by Passenger of Danger Resulting From His Driving — Collision Resulted in Passenger’s Injury — Verdict For Defendant Against Clear Weighitl of Evidence.
    On plaintiff’s rule to show cause.
    Before G-ummeee, Chief Justice, and Justices Kalisoh and Campbell.
    Eor .the rule, Aaron L. Simon.
    
    
      Contra, Frank Q. Turner.
    
   Pee Cueiam.

The defendant was the owner of an automobile. On the night of August 17th, 1923, the plaintiff and one Dennen were invited to ride with the defendant in his automobile. They accepted the invitation and the three sat abreast on the front seat of the car, the defendant operating the car. As they were proceeding along White Oak Ridge road, a public thoroughfare, in Short Hills, and the car was being propelled at a speed of about twenty-two miles an hour, Dennen observed two lights on a car parked on the right-hand side of the road and in the path of the defendant’s automobile, and called the defendant’s attention to it by saying, “Look out, Johnny, for that car ahead, I see a light,” to which the defendant replied: “All right, I am watching.” The defendant admitted that his attention was called to the car ahead when about one hundred and fifty feet from the place of the collision; that he looked for a car but could not see it plainly, and that he did not see it till he got within ten feet of it, and, as he finally put it: “When I got on top of it,” with the result that he crashed into it, whereby the plaintiff received painful and serious injuries. He also admitted that there was a red light on the rear of the car. There was also testimony that the road was fairly well lighted. A fair reading of the testimony fails to disclose any legal defense against the plaintiff’s right to a recovery. The verdict of the jury was against the clear weight of the evidence. Upon what theory of the evidence the jury could properly find a verdict for the defendant has not been suggested.

The rule to show cause is made absolute, and a trial de novo is awarded.  