On appeal from the Superior Court, Law Division.
For reversal -- Chief Justice Vanderbilt, and Justices Case, Heher, Oliphant, Burling and Ackerson. For affirmance -- Justice Wachenfeld. The opinion of the court was delivered by Ackerson, J.
This is a tort action to recover for personal injuries and property damage arising out of the collision between plaintiff's automobile and an electric train of the Pennsylvania-Reading Seashore Lines at a grade crossing in the City of Camden.
The record before us discloses the following pertinent facts: the collision occurred on the evening of November 3, 1948, at a point where the defendant's tracks intersect Chelton Avenue, a public highway in Camden. The defendant's right of way over Chelton Avenue consists of three sets of tracks running north and south, which cross the highway at right angles. The crossing was protected by a watchman who was on duty from 6:00 A.M. to 6:00 P.M. as a notice posted on his watch box showed, and also by a crossing bell located at the southwest corner of the crossing and by the standard crossing signs. The plaintiff, Arthur Mellon, driving his automobile, approached the crossing about 6:10 P.M. (after the crossing watchman had left) driving easterly on Chelton Avenue on his way from work in the Camden Brewery, where he had been employed for seven years, and which was situated several hundred feet from the crossing. A fellow worker, Stanley Kaminski, driving an automobile about 100 feet ahead of the plaintiff, slowed down and passed over the
tracks. It is conceded that it was a bad night. It was wet and dark, and a fine mist filled the air. Plaintiff testified that he slowed down and came to a full stop at the crossing for several seconds, his headlights were on, and, after looking to his right and left and seeing and hearing nothing, he proceeded to cross the tracks. In doing so his automobile was hit by the lead car of defendant's electric train which was traveling in a southerly direction -- from the plaintiff's left -- on the most westerly track of defendant's main line to Millville. The force of the impact carried his automobile a distance of 150 feet causing its destruction and multiple injuries to the plaintiff for which he seeks damages in this suit.
The negligence alleged, as stated in the pretrial order, is that plaintiff's automobile "was struck without warning by the defendant's electric train * * *." The railroad denied negligence and set forth the separate defenses of contributory negligence and assumption of risk. At the close of the evidence, defendant moved for judgment pursuant to Rule 3:50 (amended November 10, 1949). The trial court denied the motion and submitted the case to the jury resulting in a verdict of $5,000 in favor of the plaintiff upon which judgment was entered in the Superior Court, Law Division. Thereafter, defendant moved for a new trial on the grounds that the verdict was against the weight of the evidence and excessive. This motion was also denied. Defendant appealed from the judgment so entered to the Appellate Division of the Superior Court, and, prior to hearing there, the appeal was certified to us on our own motion.
At the outset it must be borne in mind that the propriety of the lower court's ruling on the first motion, i.e., for judgment in defendant's favor, is now challenged. Whether the verdict is excessive in amount or against the weight of the evidence are not matters presently before us for decision. Hence we are guided by the well settled principle that on a motion for judgment, the trial court cannot weigh the evidence but 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 legitimate inferences which are to be drawn therefrom in his favor. Peter W. Kero, Inc., v. Terminal Construction Co., 6 N.J. 361, 370 (1951); Cauco v. Galante, Ibid. 128, 132 (1951). Where fair-minded men might honestly differ as to the conclusions to be drawn from the proofs, the questions at issue should be submitted to the jury. Fischetto Paper Mill Supply, Inc., v. Quigley Co., Inc., 3 N.J. 149, 154 (1949); Antonio v. Edwards, 5 Id. 48, 52 (1950).
Defendant insists that the trial court committed reversible error in denying its motion for judgment at the conclusion of the case, and rests its argument upon two main propositions, viz., (a) that plaintiff's proofs failed as a matter of law to establish any actionable negligence on the part of the defendant, and (b) that plaintiff was guilty of contributory negligence as a matter of law. The theory of the defense with respect to the first of these propositions is that the negative testimony submitted by the plaintiff to the effect that no statutory road crossing signal (R.S. 48:12-57) was heard prior to the accident is entitled to no weight in the presence of the affirmative evidence of defendant's employees to the effect that both the bell and whistle on the engine were in operation, and, therefore, does not create a conflict of evidence justifying the submission of the question to the jury as one of fact. On the basis of the record we cannot agree with this conclusion.
Plaintiff's witness, Stanley Kaminski, whose car preceded that of the plaintiff by some 100 feet testified that he stopped when he came to the crossing, put the car window down to listen for a bell, looked both ways, saw nothing and heard nothing and crossed over. Plaintiff himself swore that he stopped his automobile, with its headlights on, about 30 feet west of the main line track, looked both to the right and left, but heard "no bell or nothing." When asked whether he heard ...