On appeal from the Essex County Circuit Court.
For the plaintiffs-respondents, Charles W. Weeks and Kennedy & O'Donoghue.
For the defendants-appellants, Edward A. Markley, John F. Leonard and Collins & Corbin.
The opinion of the court was delivered by
CASE, J. The appeal brings up money judgments for damages arising out of injuries suffered by the minor plaintiff as the result of a premature movement of the elevator in which he was a passenger. Appellants present four points, first, that the trial court erroneously refused to grant the defendants' motions for nonsuits and directions of verdicts; second, that there were errors in the court's charge; third, that the court erroneously amended the plaintiffs' bill of particulars; fourth, that the trial court erred in ruling upon evidence.
We find no reversible error under the third and fourth points.
As to the first point, we find that under the application of the maxim res ipsa loquitur the proofs justified a refusal to nonsuit; and we shall assume, although we do not decide, that at the close of the case the same situation prevailed with respect to a direction of verdict for the defendants; therefore the judicial rulings there questioned are not cause for reversal.
We find, however, that the court erred in its charge. The court, in pronouncing the law of the case to the jury, said:
"If, in the operation of this elevator by the boy, in the way it was intended to be operated, an accident happened, that is, something happens which should not happen and caused injury, why then the law calls upon the defendant to speak and explain what he has to say about such a thing happening * * *. This (viz., the application of the rule of res ipsa loquitur) means that the accident having happened on the defendants' elevator he must tell us that he did his part. * * * So I say it is for the defendants, therefore, to speak and tell us, if they can, why this accident happened."
In actions for negligence where the maxim res ipsa loquitur applies, the trial judge may hold that the circumstances are such as will, unexplained, permit the jury to draw the inference of negligence, but that inference is for the jury and
not for the court. Hughes v. Atlantic City and Shore Railroad Co., 85 N.J.L. 212; Niebel v. Winslow, 88 Id. 191; Fanshawe v. Rawlins, 89 Id. 344. It was said by Mr. Justice Swayze in the Hughes case:
"He (viz., the trial judge) is called on in the first instance to say whether there is any evidence of negligence to go to the jury; in the absence of direct evidence, he may, in cases where the maxim applies, hold that the circumstances are such as will, unexplained, permit the jury to draw the inference of negligence; but that inference is still one for the jury and not for the court. They may not believe the witnesses; the circumstances may be such that the jury will attribute the injury to some cause with which the defendant has nothing to do; they may find the inference of negligence too weak to persuade their minds; they may think a reasonably prudent man would have been unable to take precautions to avoid the injury; and in any event they may render a verdict for the defendant. This is within their province even when there is ...