proof to the contrary, but that if the evidence is contradictory or reasonably subject to contradictory interpretations, the question of liability is for the jury.' (Italics ours.)
Does this not place our present case in the same position or at the very least, does this not demonstrate the incorrectness of counsel's argument in this respect?
Counsel for the plaintiff argues that because the court held that a nonsuit should not be allowed at the close of plaintiff's case, it must follow that the court should not have dismissed at the conclusion of the entire case. This does not necessarily follow for the court may have been wrong in the first instance, and as the scribes say 'two wrongs do not make a right.' To guide us to a proper conclusion today, the rule is as stated by Justice Perskie for the New Jersey Court of Errors and Appeals, in Dobrow v. Hertz, 12 N.J.L. 347, 348, 15 A.2d 749, 750:
'The applicable law is settled. In passing upon a motion for a non suit, the evidence will not be weighed. The party against whom the motion is made is entitled to all the evidence in his favor and all the legitimate inferences to be drawn therefrom treated as true. When fair minded men may honestly differ as to the conclusion to be reached from that evidence, controverted or uncontroverted, the case must be submitted to the jury.'
'A verdict may be directed in favor of one party only when the evidence, together with the legitimate inferences to be drawn therefrom is such that no view which the jury might lawfully take of it favorable to the other party would be sustained.'
Therefore, the questions presently before the court as it sees them are: First, does the finding of the defendant hanging halfway out the door on the driver's side of the automobile after a violent collision, overcome the presumption that it was being driven by the owner (Mrs. Flemings) who was found hanging halfway out the door on the right hand side of the car? And second, if it does, does it disappear in the face of the uncontradicted testimony of the defendant that he was not driving at the time of the accident?
The best rule or yardstick that the court has been able to find is expressed by Justice Sutherland for the United States Supreme Court (1932) in Pennsylvania Railroad Co. v. Chamberlain, 288 U.S. 333, at page 341, 53 S. Ct. 391, at page 394, 77 L. Ed. 819:
'And the desired inference is precluded for the further reason that the respondent's right of recovery depends upon the existence of a particular fact which must be inferred from proven facts, and this is not permissible in the face of the positive and otherwise uncontradicted testimony of unimpeached witnesses consistent with the facts actually proved, from which testimony it affirmatively appears that the fact sought to be inferred did not exist.'
And further 288 U.S.at page 341, 53 S. Ct.at page 394, 77 L. Ed. 819:
'A rebuttable inference of fact, as said by the court in the Wabash Railroad Case, 'must necessarily yield to credible evidence of the actual occurrence.' And, as stated by the court in George v. Missouri Pac. R. Co., 'It is well settled that, where the plaintiff's case is based upon an inference or inferences, that the case must fail upon proof of undisputed facts inconsistent with such inferences."
And further 288 U.S.at page 343, 53 S. Ct.at page 395, 77 L. Ed. 819:
'The rule is settled for the federal courts, and for many of the state courts, that whenever in the trial of a civil case the evidence is clearly such that if a verdict were rendered for one of the parties the other would be entitled to a new trial, it is the duty of the judge to direct the jury to find according to the views of the court. Such a practice, this court has said, not only saves time and expense, but 'gives scientific certainty to the law in its application to the facts and promotes the ends of justice.' * * * The scintilla rule has been definitely and repeatedly rejected so far as the federal courts are concerned.'
This court, therefore, feels that in the present case, under all the proofs as submitted, that to allow the jury to deliberate in the matter would be to allow it to engage in speculation and conjecture as to whether defendant was driving the car. The burden was and is upon the plaintiff and he has not, in the opinion of the court, carried such burden sufficiently to go to the jury.
It is the present mind of the court that if the case had been allowed to go to the jury and the jury had returned a verdict in favor of the plaintiff, the court would feel obliged to set the verdict aside.
The application for a new trial, therefore, will be denied. Prepare an order.