Opinion
Submitted December 10, 1923 —
Decided March 3, 1924.
On appeal from the Hudson County Circuit Court.
For the appellant, Wall, Haight, Garey Hartpence.
For the respondent, Alexander Simpson.
This was an action in the Hudson County Circuit Court under the Federal Employers' Liability act, for damages resulting from the death of plaintiff's intestate. There was a verdict and judgment for the plaintiff, from which judgment the defendant appealed to this court, where it was reversed with the award of a venire de novo. Foley v. New York, Ontario and Western Railway Co., 97 N.J.L. 278. That opinion made the law of this case, and, on the retrial, the granting of a motion to nonsuit was required if there were no substantial variation in the testimony from that submitted on the previous trial, and there was not.
When plaintiff rested her case on the trial resulting in the judgment now under review, counsel for defendant moved for a nonsuit on the ground, among others, that she had not established the negligence set out in the complaint, and had not established against the defendant any negligence causing the accident, and this was true in point of fact. In this posture it became the duty of the trial judge to grant the nonsuit applied for. Instead, he overruled the motion and allowed the case to go to the jury, resulting in a verdict for the plaintiff, as above stated. This was error, and requires reversal, with the award of another venire de novo. For affirmance — BLACK, J. 1.
For reversal — THE CHANCELLOR, CHIEF JUSTICE, TRENCHARD, PARKER, MINTURN, KATZENBACH, HEPPENHEIMER, GARDNER, VAN BUSKIRK, CLARK, JJ. 10.