Opinion
Submitted May 27, 1927 —
Decided October 17, 1927.
1. Where the defense of contributory negligence was neither urged as a ground for a nonsuit, or the direction of a verdict, nor embodied in a request to charge the jury, it cannot be used as a ground for reversal on appeal.
2. Where there is evidence of negligence of the defendant, it is the province of the jury and not of the court, to pass upon it in determining the question of defendant's liability.
On appeal from the Supreme Court.
For the appellant, William A. Kavanagh.
For the respondent, William C. Kronmeyer.
Respondent was a passenger in a taxicab owned and operated by Mac's Auto Service, Incorporated, and in a collision between such vehicle and the automobile of appellant she received injuries for which she brought suit against both, Mac's Auto Service, Incorporated, and appellant, securing a verdict against the latter only, who appeals from the judgment entered thereon.
Four grounds for reversal are urged.
The first is that the driver of the taxicab was guilty of contributory negligence.
This is not properly before us, because it was not urged as a ground for nonsuit or direction of verdict, nor was there any request to so charge.
The second and fourth grounds are not proper grounds of appeal; the first thereof being that the verdict is against the weight of the evidence, and the second thereof being that the verdict is excessive.
The remaining ground is alleged error in refusing to nonsuit and direct a verdict for appellant.
There was no error therein. There was evidence of negligence, and, contradictory as it may have been, it was for the jury to pass upon, and from it determine the question of negligence.
The judgment below is affirmed, with costs.
For affirmance — THE CHIEF JUSTICE, TRENCHARD, PARKER, KALISCH, BLACK, KATZENBACH, CAMPBELL, LLOYD, WHITE, VAN BUSKIRK, McGLENNON, KAYS, HETFIELD, DEAR, JJ. 14.
For reversal — None.