'Q. How much mileage had these tires been used for? A. Less than one thousand miles.
'Q. Were they new when you got them? A. Yes, sir.'
Defendant further contended that it was not the contact with the curb that blew out the right front tire because 'my tire was blown out on the top of the side wall, not the spot where it would come in contact with the curb.' (N.T. 144.)
Then upon further cross-examination by plaintiff, he testified:
'Q. Well, what do you mean by the top of the side wall? A. By the rim.
'Q. By the rim, is that right? A. Yes.
'Q. Well, now, what evidence -- A. In the white part.
'Q. What? A. In the white part of the tire.
'Q. That's right. Now, going over there could not cause a blowout in your car, could it? A. Yes, it could cause a blowout, but it would cause it in the spot that came in contact with the curb.
'Q. It couldn't cause a blowout? A. Not at the spot that didn't come in contact with the curb.'
Defendant contends that the foregoing testimony offered an explanation which should have concluded the case. This is urged on the ground that res ipsa loquitur is applied only in a situation where there is absent an explanation by the defendant. Defendant therefore charges that the Court erred (a) in instructing the jury on res ipsa and that that alone entitled him to a new trial, and (b) that the res ipsa instruction being improper, plaintiff's other proof fell short of showing negligence, thus entitling defendant to a directed verdict, and now judgment notwithstanding the verdict. With this, we cannot agree.
We do not believe that a plaintiff should lose the benefit of the doctrine merely because the defendant gives some explanation as to how the accident occurred. Defendant's explanation must be reasonable, rational and not inconsistent, and one carrying conviction. Of course, these questions are best judged by the jury. They have had the benefit of seeing the witnesses and hearing the conflicting evidence produced by both sides.
We think it was proper for the Court to send the case to the jury under the New Jersey doctrine of res ipsa loquitur. Bevilacqua v. Sutter, 1953, 26 N.J.Super. 394, 98 A.2d 60; McKinney v. Public Service, 1950, 4 N.J. 229, 72 A.2d 326; Ehrlich v. Merritt, 3 Cir., 1938, 96 F.2d 251. Defendant's motions for judgment notwithstanding the verdict and, in the alternative, for a new trial must be denied.