On appeal from the Supreme Court (Somerset Circuit).
For the appellant, Henry H. Fryling (Elmer W. Romine and William H. Speer, of counsel).
For the respondent, Gebhardt & Gebhardt (W. Reading Gebhardt, of counsel).
The opinion of the court was delivered by
TRENCHARD, J. This action was brought to recover damages sustained by the plaintiff in a collision between the defendant's trolley car and the plaintiff's automobile truck. The trial resulted in a verdict and judgment for the plaintiff and the defendant appeals.
The defendant says that the trial judge erred in refusing to nonsuit and to direct a verdict for the defendant upon the ground of contributory negligence of the plaintiff.
These contentions may well be considered together since they stand upon the same footing.
We think both motions were properly denied.
Of course, in passing upon motions to nonsuit and to direct a verdict upon the ground of plaintiff's contributory negligence, the court is not concerned with the credibility of witnesses nor with the weight of the evidence, but must take as true all evidence which supports the plaintiff's view and must give him the benefit of all legitimate inferences which may be drawn therefrom in his favor; and where the proven facts and circumstances are such that reasonable minds may reasonably differ as to the fair inference or conclusion to be drawn therefrom as to whether or not the plaintiff exercised reasonable care for his own safety, a jury question is presented and such motions must be denied. Andre v. Mertens, 88 N.J.L. 626; 96 A. 893; Cady v. Trenton and Mercer, &c., Corp., 104 N.J.L. 572; 141 A. 806.
Here, regard being had to such rules, the question of contributory negligence was for the jury (as the trial judge considered) for, under the evidence, it was open to the jury to find, if they saw fit, the following matters of fact:
The accident occurred at nine forty-five A.M. on September 24th, 1929, on East Main street, in Bound Brook. That street was thirty-five feet wide, twenty-two feet of which was paved with concrete and the remaining thirteen feet with macadam, in which macadam was laid the defendant's trolley track. The plaintiff was driving his truck easterly on the concrete pavement parallel to, and about six feet away from the track. He desired to enter the yard of a large public garage maintained on the south side of the street, and in order to do so it was necessary for him to make a right-hand turn across the macadam ...