On appeal from the Supreme Court.
For the plaintiff-respondent, Marshall H. Diverty.
For the defendant-appellant, Bourgeois & Coulomb.
The opinion of the court was delivered by
RAFFERTY, J. This is an appeal from a denial by the trial judge of a motion for direction of verdict made on behalf of defendant-appellant at the close of the trial. The motion, fully argued, was based on the contention that there was nothing in the case that would justify the jury in rendering a verdict for the plaintiff.
The cause of action arose out of the claimed negligence of appellant company in causing a fire to be started in a field
adjacent to its right-of-way at or near Tuckahoe, Atlantic county. It appears that suits also were instituted against two other railroad companies, that the suit against one of these other companies was dismissed by consent and that no trial has been had in the suit instituted against the other company. The suit against appellant consumed eleven trial days and resulted in a verdict in favor of plaintiff.
We have carefully examined the testimony adduced at the trial and have considered the argument of counsel and are satisfied that the state of the evidence at the close of the case, when the motion was made, was such as to leave a clear jury question with reference to the several elements upon which the claim of negligence of defendant was based and that the ruling of the trial judge denying the motion for direction of verdict was correct.
The test to be applied by the trial court is whether upon the uncontroverted facts a verdict for the plaintiff could not be sustained. When the testimony will, by inferences reasonably arising therefrom, support a finding other than that requested in the motion for direction the court is justified in denying such motion. Jones v. Jaczko, 107 N.J.L. 355.
The judgment entered in the court below is affirmed, with costs.
For affirmance -- THE CHANCELLOR, CHIEF JUSTICE, CASE, BODINE, DONGES, HEHER, PERSKIE, HETFIELD, DEAR, WELLS, ...