On appeal from the Essex County Court of Common Pleas.
For the appellant, Samuel H. Nelson.
For the respondent, Nicholas La Vecchia.
Before Brogan, Chief Justice, and Justices Trenchard and Heher.
The opinion of the court was delivered by
TRENCHARD, J. This is the appeal of the defendant below from a judgment entered upon the verdict of the jury in favor of the plaintiff who sued to recover for physical injury received when he was hit by a taxicab owned and operated by the defendant and while the plaintiff was employed in sweeping a street of the city of Newark.
The defendant first says that the trial judge erred in refusing to nonsuit the plaintiff and in refusing to direct a verdict for the defendant.
These two motions may be considered together as they are substantially to the same effect, namely, that there was no evidence of negligence upon the part of the defendant.
We think both motions were properly denied.
Of course, in passing upon motions to nonsuit and to direct a verdict upon the ground that there was no evidence of defendant's negligence, the court is not concerned with the credibility of the 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 evidence is such that reasonable minds may differ as to the fair conclusion to be drawn therefrom as to whether or not the defendant exercised reasonable care, 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 defendant's 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 plaintiff was employed by the city of Newark, as a street sweeper. Shortly prior to the moment of the accident, he stepped from the sidewalk into the street near a refuse box located along the curb. As he did so he looked and saw the defendant's taxicab parked along the curb, standing still with the motor silent, and with an intervening space of about ten feet between the front of the taxicab and the rear of another car parked ahead of it. He began sweeping the street about ten feet to the rear of defendant's taxicab, with his back to the taxicab and leaning over pushing his broom, and facing any traffic which might be coming on his side of the street. After an interval of about two minutes, and without any warning or other indication of movement, the ...