The opinion of the court was delivered by
Parker, J.The facts, or the inferences deducible therefrom, are stated in the opinion of the Supreme Court, and we concur in the result reached by that court in reversing the judgment and remanding the cause for a new trial.
The trial judge held specifically that he could “find no negligence in law on the part of the defendant upon which liability in this case can be based.” This, taken in connection with other language in his written decision,, we understand as meaning that upon no legitimate finding of facts as based on the evidence could negligence be predicated as a ground of recovery. This amounts to saying that if there had been a jury the case was one for a nonsuit or a direction of a verdict for defendant.
*425If the judge, sitting as a jury, liad said lie did not think plaintiff had shown negligence, his finding would be impregnable on an appeal raising only matters of law; but in dealing with the question as one for the court rather than for the jury, lie fell into an error similar to that which necessitated a reversal in Weston Company v. Benecke, 82 N. J. L. 445, where the judge, sitting as judge and jury, nonsuited, instead of dealing with the evidence as a jury was entitled to deal with it.
There was evidence in this case to go to a jury on the questions both of negligence and contributory negligence; and it should have been dealt with in that aspect.
We agree with the Supreme Court that the evidence of the remark by the salesman should have been excluded. We do not agree, however, that on the evidence the liability of defendant was “manifest.” When the doctrine of res ipsa loquitur is invoked, the question of negligence is still one for the jury. Hughes v. Atlantic City Railroad, 85 N. J. L. 212; Niebel v. Winslow, 88 Id. 191; Fanshawe v. Rawlins, 89 Id. 344.
Let the judgment of the Supreme Court be affirmed.
For affirmance — The Chief Justice, Parker, Bergen, Kalisch, Black, Taylor, JJ. 6.
For reversal — The Chancellor, White, Heppenheimer, Williams, Gardner, JJ. 5.