McGeehan, Jayne and Wm. J. Brennan, Jr. The opinion of the court was delivered by Jayne, J.A.D.
The present litigation arose out of the occurrence of a mishap on January 13, 1949, in which a motor bus operated by the defendant collided with the plaintiff, a pedestrian, on River Road, in the Borough of Edgewater, Bergen County, New Jersey. The trial of the action was concluded by a jury verdict in favor of the plaintiff with an award to him of damages in the amount of $20,000. The sequential judgment is transmitted here for review by the defendant-appellant.
An abridged statement of the testimony relating to the circumstances accompanying and surrounding the occurrence of the collision will suffice to exhibit the background of the points debated in this appeal.
In the daylight of a clear afternoon the plaintiff paused at the westerly curb of River Road with the intention in mind to cross to the easterly side of the highway where he anticipated entering an expected north-bound bus. In making observations to the north he saw a relatively large motor truck parked along the westerly curb a few feet distant from him, but despite its intervening presence he saw the defendant's bus rapidly approaching from the north. It was then 100 or 150 feet distant from him. He nevertheless proceeded across the highway looking south. He next saw the southbound bus an instant before the collision.
Motions were made on behalf of the defendant for the dismissal of the action at the close of the plaintiff's affirmative case and for a judgment for the defendant at the conclusion of the introduction of the evidence. Rules 3:41-2, 3:50. Both motions were denied by the trial judge and the propriety of the latter ruling is now vigorously challenged.
The contention in support of the motion in the trial court, as here, is that the conduct and deportment of the plaintiff is encompassed by the rationale of such cases as the following, in which it was resolved that the pedestrian was guilty of contributory negligence as a matter of law. Fitzhenry v. Consolidated Traction Co. , 64 N.J.L. 674 (E. & A. 1900); McCormick v. Hesser , 77 N.J.L. 173 (Sup. Ct. 1908);
Hackney v. West Jersey & Seashore R.R. Co. , 78 N.J.L. 454 (E. & A. 1909); Conrad v. Green , 94 A. 390 (Sup. Ct. 1915) -- not elsewhere reported; Branigan v. Demarest , 109 N.J.L. 123 (E. & A. 1932); Laskowski v. Mankovich , 10 N.J. Misc. 441 (Sup. Ct. 1932); Rado v. Zlotnick , 7 N.J. Super. 197 (App. Div. 1950).
In the consideration of motions for the involuntary dismissal of an action, the present analogue of the superseded motion for a nonsuit, or for judgment for the defendant, the modern counterpart of the former motion for a direction of the verdict, it must be recognized that while the denominations of the motions have been refashioned (Rules 3:41-2, 3:50), the rules formerly applicable to the determination of such motions continue to survive.
The familiar rules which in such situations immediately capture the attention of our trial judges are:
1. Negligence is never presumed. It, or the circumstantial basis for the inference of it, must be established by competent proof. Oelschlaeger v. Hahne & Co. , 2 N.J. 490 (1949); Callahan v. National Lead Co. , 4 N.J. 150 (1950).
2. The existence of negligence and contributory negligence are pre-eminently questions of fact for the jury. Fox v. Great Atlantic and Pacific Tea Co. , 84 N.J.L. 726 (E. & A. 1913); Branigan v. Demarest, supra; Shappell v. Apex Express , 131 N.J.L. 583 (E. & A. 1944).
3. The court must accept as true all evidence which supports the view of the party against whom the motion is made and must give him the benefit of all inferences which may logically and legitimately be drawn therefrom in his favor. Such continues to be the rule. Scarano v. Lindale , 121 N.J.L. 549 (E. & A. ...