Opinion
Argued October 16, 1946 —
Decided January 17, 1947.
Evidence in a negligence suit examined, and held that a motion to nonsuit on the ground of contributory negligence was properly denied.
On defendant's appeal from the Supreme Court.
For the appellant, George F. Lahey, Jr.
For the respondent, Abraham H. Rosenblum.
This is an accident case. A motion for nonsuit based on the sole ground of contributory negligence, was denied. There was no motion for direction of verdict at the close of the evidence. On familiar principles, the whole evidence is to be considered.
The appellant was performing a contract for repairs to respondent's house, and particularly the front porch and front steps. The workmen on quitting for the day left a loose plank as the tread of one of the steps, and after dark the plaintiff, hearing a noise, went out to investigate and trod on the step, which tilted up with her and caused personal injury for which the suit was brought.
Counsel may well have argued to the jury that plaintiff, aware of the unfinished condition of the work, should have avoided the front door exit, or at least have anticipated probable danger; but those questions were clearly for the jury and not for the court to settle. And as we have already pointed out, the case was closed and submitted to the jury without any motion for direction of a verdict for defendant.
The judgment will be affirmed.
For affirmance — THE CHANCELLOR, PARKER, BODINE, DONGES, HEHER, PERSKIE, COLIE, WACHENFELD, EASTWOOD, WELLS, RAFFERTY, DILL, FREUND, McGEEHAN, McLEAN, JJ. 15.
For reversal — None.