Ennulat

The plaintiff brought this action to recover damages resulting from alleged negligence of the defendant in driving an automobile, so that said automobile collided with another automobile in which the plaintiff was riding and which was driven by one Phillippo. The denials contained in defendant’s answer raised substantial issues of fact, including a denial of any negligence by the defendant. Defendant further pleaded an affirmative defense charging negligence of the driver Phillippo, which directly, proximately and concurrently contributed to plaintiff’s alleged injuries. It was further alleged in the answer that the plaintiff and Phillippo were jointly engaged in operating and controlling the automobile in which the plaintiff was riding. In accordance with the verdict of a jury, judgment was entered in favor of the plaintiff in the sum of $5,000. Thereafter, on motion of the defendant, the court entered its order granting a new trial, from which order the plaintiff now appeals.

In its order granting the motion for a new trial the court did not state that the order was made upon the ground of insufficiency of the evidence to sustain the verdict. When the court does not so specify,…