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Walcutt v. Holiday Motors Inc.

New Jersey Superior Court, Appellate Division


Decided: December 27, 1948.

JOHN I. WALCUTT, PLAINTIFF-RESPONDENT,
v.
HOLIDAY MOTORS, INC., A CORPORATION, AND WILBUR E. TWITTY, DEFENDANTS-APPELLANTS

Jacobs, Eastwood and Bigelow. The opinion of the court was delivered by Eastwood, J.A.D.

Eastwood

[1 NJSuper Page 118]

This is a highway collision case. Defendant appeals from an adverse judgment returned by the Judge of Essex County District Court, sitting without a jury, for the stipulated damages of $200 to plaintiff's automobile, allegedly caused by negligence of defendant, Wilbur E. Twitty, operator of motor vehicle of defendant, Holiday Motors, Inc.

The issue is solely a factual one, and for the purpose of this appeal the facts have been stipulated. In these days of increasing motor traffic and the consequent risks incident thereto, this accident is not unusual, in that it involved a collision between two automobiles at the intersection of two public thoroughfares, to wit: Park Avenue and Prospect Street, in the City of East Orange. There was conflicting testimony on the question of negligence and contributory negligence. At the end of the

[1 NJSuper Page 119]

plaintiff's case, defendants moved for a non-suit which the court denied.

Defendants assert two grounds of appeal: (1) plaintiff was guilty of contributory negligence; and (2) that the court erred in refusing defendants' motion for non-suit.

Under the procedure in effect prior to September 15, 1948, findings of fact by a trial judge in the District Court on conflicting evidence, were conclusive on appeal. R.S. 2:32-202. Under present court Rules 1:2-20 and 4:2-6, the appellate court may review the facts and make an independent finding. Rule 3:81-13. See also DeMoors v. Atlantic Casualty Insurance Company of Newark , 1 N.J. Super , 1, 61 A.2d 511 (App. Div. 1948); Tuzio v. Saylor , 1 N.J. Super. 61 (App. Div. 1948), recently decided. There was, however, ample evidence in the record here to justify the trial judge's finding, and we see no justification for disturbing it.

Where, as here, the only basis for an appeal from an adverse judgment clearly appears to involve a controversial factual issue, we will not review the facts and make independent findings thereon, unless the interests of justice may so require.

The judgment below is affirmed, with costs.

19481227


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