Jacobs, Eastwood and Bigelow. The opinion of the court was delivered by Eastwood, J.A.D.
The plaintiff appeals from a judgment of dismissal entered by the Essex County Court, Law Division, at the conclusion of the trial of her negligence action.
The following facts emerge from our review of the record: The accident occurred on December 14, 1949, at about 5:30 P.M., shortly after the plaintiff's decedent had alighted from an automobile at a point about opposite the home of the plaintiff's decedent, 45 Bay Avenue, Bloomfield, New Jersey, and approximately midway between Mill Street and Broughton Avenue. Bay Avenue is a county highway 35 to 40 feet in width, uncurbed at that point, having an asphalt paved surface and a white center line. Darkness had set in. An overhead incandescent street light on a pole in front of plaintiff's home was lighted. The left side of the decedent, who was 53 years of age, had been paralyzed for about eight years and he walked with the aid of a cane. One Robert Clendinning, who was operating his automobile in the rear of three cars, all travelling at a speed of approximately 15 miles per hour in an easterly direction on Bay Avenue, observed the decedent on his side of the road as he turned to come down a grass embankment extending from the sidewalk to the road "and go in the back of my car." Mr. Clendinning had gone about 30 feet beyond the decedent when he heard a noise, and returning found Mr. Riley approximately two feet north of the center white line, attempting to arise. He and the driver of a car that had been following him assisted Mr. Riley into his home. There is a curve in the road at the point where the accident occurred. The car immediately preceding Mr. Clendinning by about 10 or 15 feet obstructed his view of the east lane of traffic, but not as to cars coming in the opposite direction; that when he was about 150 feet away from the scene of the accident, he first observed Mrs. Weigand's car coming in the opposite direction and it was being operated at a slow rate of speed. Mrs. Weigand was travelling about 12 to 15 miles per hour in a westerly direction
on Bay Avenue. As she drove along, the right side of her car was about one and one-half feet from the north edge of the road and about three or four feet in from the center line. She had a full view ahead and when she reached the point where the accident occurred, she continued to look directly ahead and saw nothing in front of her; that almost immediately after the Clendinning car had passed her, she heard a noise that sounded like a thud coming from the direction of the rear left side of her car; she immediately pulled her car to the side of the road and stopped; she then went back approximately 45 feet and found the decedent about two feet north of the center line. The decedent, after being taken into the kitchen of his home, was then taken to a bedroom where it appeared that he was bleeding at the nostrils, his arm appeared to be distorted and his left leg broken. Police officer Reeves, who was about two blocks away from the scene, received a radio call informing him of its occurrence. Upon arrival at the Riley home, he telephoned for an ambulance and a medical doctor. After the arrival of the ambulance and while awaiting the doctor's arrival, the police officer asked Mr. Riley what had happened, but, on objection by the defendant, the court refused to permit the officer to testify as to Mr. Riley's reply. Mrs. Riley testified that Mrs. Weigand, who had come into the house, said to her: "Mrs. Riley, can you forgive me for what I have done? I didn't see Mr. Riley."
The plaintiff contends that (1) the trial court erred in entering a judgment of dismissal against the plaintiff and in favor of the defendant; and (2) that the trail court erred in refusing to permit the police officer to testify what the decedent stated as to how the accident occurred.
It seems to us that, at best, the evidence does nothing more than establish the occurrence of an accident. But, as was stated by Mr. Justice Case, in McKinney v. Public Service Interstate Transp. Co. , 4 N.J. 229 (1950), at p. 241:
"The mere showing of an accident causing the injuries or death sued upon is not alone sufficient to authorize an inference of negligence;
negligence is a fact which must be shown; it will not be presumed. McCombe v. Public Service Railway Company , 95 N.J.L. 187 (E. & A. 1920); Church v. Diffany , 124 N.J.L. 100 (E. & A. 1939); Oelschlaeger v. Hahne & Co. , 2 N.J. 490 (1949). To establish a case of negligence and fix liability upon a defendant it is incumbent upon the plaintiff to prove some fact which is more consistent with negligence than with the absence of it. Alvino v. Public Service Railway Co. , 97 N.J.L. 526 (E. & A. 1922); Grugan v. Shore Hotels Finance and Exchange Corporation , 126 N.J.L. 257 (E. & A. 1940)."
The "mere scintilla" of evidence rule does not prevail in this State. To grant a motion of dismissal, the trial judge is not restricted to an utter absence of all evidence of a contradictory purport. Gentile v. Public Service Coordinated Transport , 12 N.J. Super. 45 (App. Div. 1951). Of course, the court must necessarily 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. McKinney v. Public Service Interstate Transp. Co., supra. Where fair-minded men might differ as to the conclusions to be drawn from the facts, whether controverted or uncontroverted, the question at issue should be submitted to the jury. Schwartz v. Rothman , 1 N.J. 206 (1948); Antonio v. Edwards , 5 N.J. 48 (1950). However, where there are no disputed facts or disputed inferences to be drawn from the uncontroverted facts, it devolves upon the court to declare the judgment which the law imposes. Kaufman v. Pennsylvania Railroad Co. , 2 N.J. 318 (1949).
The undisputed evidence establishes that after decedent had alighted from the automobile of his co-worker, he waited on the grass embankment on the south side of Bay Avenue until the car of Mr. Clendinning had passed and then started across the street in back of his car; in the meantime, the automobile of Mrs. Weigand was closely approaching him on the north side of the street; the cars of Mrs. Weigand and Mr. Clendinning had just about passed each other when ...