The opinion of the court was delivered by: SMITH
The plaintiff brought this action to recover damages for personal injuries sustained when he fell or was thrown from a 'bob sled,' an amusement device, which was admittedly owned and operated by the defendant. The defendant raised the usual defenses, to wit, absence of negligence, contributory negligence, and the assumption of risk. The jury returned a verdict in favor of the plaintiff and against the defendant and assessed the damages at $ 45,000. The action is before the Court at this time on a motion for a new trial filed by the defendant under Rule 59 of the Federal Rules of Civil Procedure, 28 U.S.C.A.
There were fourteen grounds stated in the motion. We have considered all of them but find it necessary to discuss only the principles applicable to the main ground, to wit, the verdict was contrary to the weight of the evidence. The decision of the Court on the question raised by this ground is necessarily determinative of the issues raised by several related grounds stated in the motion.
It must be conceded that the evidence, the testimony and the inferences reasonably deducible therefrom, must be viewed in the light most favorable to the plaintiff. The sufficiency of the evidence thus viewed must be tested by the local law where, as here, the local law is determinative of the substantive rights of the litigants. Waldron v. Aetna Casualty & Surety Co., 3 Cir., 141 F.2d 230, 234; Moran v. Pittsburgh-Des Moines Steel Co., 3 Cir., 166 F.2d 908, 916. It is our opinion that it cannot be said that the evidence in the instant case, viewed in the light of these established principles, is not sufficient to support the verdict. Connors v. Hudson City Gravity Coaster Co., 130 A. 443, 3 N.J.Misc. 989; Jackson v. Dreamland Coaster Co., 135 A. 56, 4 N.J.Misc. 924; Schnoor v. Palisades Realty & Amusement Co., 112 N.J.L. 506, 172 A. 43; See also Tompkins v. Burlington Island Amusement Co., 102 N.J.L. 411, 132 A. 670.
The testimony of the witnesses called by the respective parties was in conflict. It was, however, the exclusive province of the jury to judge the credibility of the witnesses, to weigh the testimony, and to draw inferences from the credible testimony. Tennant v. Peoria & P.U. Ry. Co., 321 U.S. 29, 35, 64 S. Ct. 409, 88 L. Ed. 520; Lavender v. Kurn, 327 U.S. 645, 653, 66 S. Ct. 740, 90 L. Ed. 916; Travelers Ins. Co. v. Warrick, 5 Cir., 172 F.2d 516; Shiffler v. Pennsylvania R. Co., 3 Cir., 176 F.2d 368; See also Bennett v. Busch, 75 N.J.L. 240, 67 A. 188, 189; Emery v. Fritchey, 112 N.J.L. 161, 169 A. 828, 829; Jackson v. Delaware, L. & W.R. Co., 111 N.J.L. 487, 170 A. 22, 23. The courts 'are not free to reweigh the evidence and set aside the jury verdict merely because the jury could have drawn different inferences or conclusions or because judges feel that other results are more reasonable.' Tennant v. Peoria P.U. Ry. Co., supra; Casey v. American Export Lines, 2 Cir., 173 F.2d 324, 328; See also Finnegan v. Goerke Co., 106 N.J.L. 59, 147 A. 442, 443; Nusser v. United Parcel Service of New York, 3 N.J.Super. 64, 65 A.2d 549, 551, and the other cases herein cited.
The general principle which must be applied was succinctly stated by the Supreme Court in Tennant v. Peoria & P.U. Ry. Co., supra, 321 U.S.at page 35, 64 S. Ct.at page 412, 88 L. Ed. 520, as follows: 'It is not the function of a court to search the record for conflicting circumstantial evidence in order to take the case away from the jury on a theory that the proof gives equal support to inconsistent and uncertain inferences. The focal point of judicial review is the reasonableness of the particular inference or conclusion drawn by the jury. It is the jury, not the court, which is the fact-finding body. It weighs the contradictory evidence and inferences, judges the credibility of witnesses, receives expert instructions, and draws the ultimate conclusion as to the facts. The very essence of its function is to select from among conflicting inferences and conclusions that which it considers most reasonable. (Citations omitted). That conclusion, whether it relates to negligence, causation or any other factual matter, cannot be ignored. Courts are not free to reweigh the evidence and set aside the jury verdict merely because the jury could have drawn different inferences or conclusions or because judges feel that other results are more reasonable.'
It was further stated by the Supreme Court in the case of Lavender v. Kurn, supra, 327 U.S.at page 653, 66 S. Ct.at page 744, 90 L. Ed. 916: 'It is no answer to say that the jury's verdict involved speculation and conjecture. Whenever facts are in dispute or the evidence is such that fair-minded men may draw different inferences, a measure of speculation and conjecture is required on the part of those whose duty it is to settle the dispute by choosing what seems to them to be the most reasonable inference. Only when there is a complete absence of probative facts to support the conclusion reached does a reversible error appear. But where, as here, there is an evidentiary basis for the jury's verdict, the jury is free to discard or disbelieve whatever facts are inconsistent with its conclusion. And the appellate court's function is exhausted when that evidentiary basis becomes apparent, it being immaterial that the court might draw a contrary inference or feel that another conclusion is more reasonable.' This principle would seem to limit not only the right of the appellate court but also the right of the trial court.
The defendant also urges in support of the present motion that it was 'error for the Court to fail to direct a verdict in favor of the defendant' at the close of the plaintiff's case and at the close of the evidence. It is our opinion that this ground is without merit. It has been held by the Court of Errors and Appeals of this state that when 'a case involves a controverted question of fact, in which the evidence is conflicting, and out of the conflict may be gathered sufficient evidence to support a verdict for either party, * * * , the issue of fact should be left to the jury, and the court should not direct.' Emery v. Fritchey, supra (112 N.J.L. 161, 169 A. 829).
The principles hereinabove discussed are applicable not only to the question raised by a motion for a new trial but also the question raised by a motion for a directed verdict where, as here, the ground urged is the insufficiency of the evidence to support the claim of the plaintiff.
The defendant filed a supplemental motion for a new trial on November 25, 1949. The only ground urged in this motion was 'newly discovered evidence.' The defendant is entitled to prevail on this motion only upon proof, first, that the newly discovered evidence is not merely cumulative, and second, that the evidence could not have been discovered prior to trial by the exercise of reasonable diligence. This is the accepted rule in the federal and state courts. F. W. Woolworth Co. v. Seckinger, 5 Cir., 125 F.2d 97, 98; Rome Grader & Machinery Corp. v. J. D. Adams Mfg. Co., 7 Cir., 135 F.2d 617, 621; United States v. Bransen, 9 Cir., 142 F.2d 232, 235; Anderson v. Tway, 6 Cir., 143 F.2d 95, 105; Hoban v. Sandford & Stillman Co., 64 N.J.L. 426, 45 A. 821, 823; Christie v. Petrullo, 101 N.J.S. 492, 128 A. 853, 854; Dunn v. Parker & Graham, 159 A. 613, 614, 10 N.J.Misc. 492; Paradise v. Great Eastern Stages, Inc., 114 N.J.L. 365, 176 A. 711, 712. The evidence offered by the defendant by affidavit seems to clearly indicate that both requirements are absent in the instant case.
The 'newly discovered evidence' is the statement of one Loren L. Perkins, a witness to the accident. This statement is contained in a letter dated November 14, 1949, addressed to the attorney for the defendant. A copy of the letter is annexed, and it will be observed that the statements therein contained are not under oath. We shall, however, for the purposes of this motion, overlook this defect and consider the statements as though made under oath.
A relevant and material statement made by Perkins reads as follows: 'He (the plaintiff) was riding backwards without using the safety strap I believe. He refused to face forward on the demand from the attendant of the 'Bob Sled,' but I can't remember what was said now.' This statement is somewhat indefinite but, considered in the light most favorable to the defendant, it would seem to be merely corroborative of the testimony of one Jean Campbell, a witness called by the defendant at the trial.
The relevant testimony of the witness Campbell follows:
'Q. Is this the young man here? A. That's right, sir.
'Q. What was he doing at that moment? A. Well, it was about a second before he fell out of the car; at that time he was standing up in the first car facing me.
'Q. And what was he doing? A. Well, I couldn't really say whether he was trying to get in the second car at the time or trying to attract someone's attention in a car behind. The only thing really that I noticed was that he ...