Daniel J. Brennan, McLean and Ewart. The opinion of the court was delivered by Daniel J. Brennan, J.s.c. Ewart, J.s.c. (dissenting).
[21 NJSuper Page 260] This is an appeal from the whole of the final judgment entered in favor of Irving Levin and Abe Levin, partners trading as L. & M. Express Co., and their driver, Paul Marino, Jr., at the conclusion of the plaintiffs' case. The trial court entered a judgment of no cause for action in favor of the defendants, Public Service Coordinated Transport, Nunzio Daniello, Sam Maita, Irving Levin and Abe Levin, partners trading as L. & M. Express Co., and Paul Marino, Jr., and against the plaintiffs, Henry Szczytko, Anna Szczytko, and Edmund J. Szczytko, with costs. With the consent of the attorney for the plaintiffs and
at the conclusion of the evidence introduced in behalf of these plaintiffs, the court directed that judgment of no cause of action be entered in favor of the defendant Nunzio J. Daniello, on motion of his attorney.
The judgment as rendered in favor of L. & M. Express Co. and its driver, Paul Marino, Jr., is the only one appealed from by the plaintiffs. The Appendix discloses that the complaint as there printed is in abridged form and relates solely to the controversy existent as between the plaintiffs-appellants and these named defendants-respondents. All omitted portions of the complaint are deemed unnecessary to be reproduced by counsel for the appellants so far as the issues involved in this appeal are concerned (Appendix foot of 1a). In the determination of this appeal, however, it is advisable that the facts as adduced before the trial court, as these related to all of the parties defendant to this litigation, be considered.
Reflected by the printed Appendix and briefs submitted by respective counsel here appearing, the facts appear to be as follows:
On September 7, 1949, the plaintiffs Henry Szczytko and his brother, Edmund, were the owners of a one-and-one-half-ton 1941 Dodge truck, described as a G.I. vehicle with high fenders, large wheels and four-wheel drive, with panel. Henry Szczytko was driving this truck in which were riding his wife, Anna, and their infant child. Henry and his wife were both injured and the automobile damaged. Henry and his wife bring suit for her personal injuries, while Henry and his brother, Edmund, seek payment for the damage to their truck. It appears, however, that any claim made heretofore for the personal injuries sustained by Henry arising out of this accident were abandoned and, by consent, all counts in the complaint relating thereto were dismissed.
On the day in question Henry, his wife and their infant child were riding in the Szczytko truck. It was being driven by Henry in a northerly direction on Route 25-Edgar Road about at the intersection of Clinton Street, in the City of
Linden, shortly before noon. This is the main artery of traffic between the Jersey shore and Newark, New York and Elizabeth. Traffic was very heavy at this particular hour. The truck of the plaintiff was in the middle lane of a three-lane highway. Ahead of the Szczytko car was the automobile truck driven by Marino and ahead of the Marino car was an automobile truck driven by Daniello. The Marino truck is owned by the present defendants-respondents. There is a traffic light at the intersection of Clinton Street with Edgar Road-Route 25. The three trucks, i.e. , the Daniello car, the Marino car, and the Szczytko car, proceeded along all in the middle lane, one in back of the other, all traveling in the same direction, viz. , north. Daniello, Marino and Szczytko approached the intersection of Clinton Street and Edgar Road-Route 25 where the traffic light there maintained had turned red. All three stopped. A Public Service bus, driven in the same direction, had managed to get across the Clinton Street intersection just before the traffic light turned red and had come to a stop near the curb on the far corner to pick up and discharge passengers. After the light had turned green, the bus had started out diagonally left into the center lane and the line of traffic had started up. Daniello was just passing the green light before he came to the intersection across Clinton Street, and while the bus had his arrow lights on ready to pull out of the lane, Daniello applied his brakes very gently to let the bus go by, until he heard a little crash. Then Daniello stopped completely. The plaintiff-operator could not see past Marino's truck. The plaintiff-operator admitted that he had seen the Marino truck as it was moving forward and saw it stop, but was unable himself to stop and thus collided with the rear of the Marino truck, injuring Mrs. Szczytko and damaging the plaintiffs' automobile.
The suit against the several defendants sounds in negligence. The pretrial order recites the negligence of these defendants to be as follows:
"The negligence of the defendant Public Service consisting of the fact that the bus operated by its agent and servant pulled out from
a curb without warning into a path of traffic going in the same direction, thereby causing the vehicle operated by the defendant Daniello to stop suddenly; he in turn gave no warning, and as a result the vehicle operated by defendant Marino was compelled to stop suddenly without warning; and as a result the car operated by Henry Szczytko, in which his wife Anna was a passenger, crashed into the rear of vehicle driven by defendant Marino. The defendants Maita, Irving Levin and Abe Levin were the owners of the vehicle operated by Marino and thus are made defendants on the theory of agency. * * * Plaintiffs will also rely on the allegations of negligence set forth in the complaint."
The several defendants present these defenses as the same are set forth in the pretrial order in the following exact tenor:
"Defendant Public Service Coordinated Transport denies any negligence and furthermore denies ownership, operation and agency of the bus allegedly involved in the accident. Said defendant relies upon the affirmative defenses set forth in the answer, which are made a part hereof. Defendant Daniello admits ownership and operation of his vehicle, denies any negligence, asserts contributory negligence and joint enterprise. Defendants Maita, Irving Levin, Abe Levin and Marino admit ownership and operation and deny agency, deny negligence, assert contributory negligence and joint enterprise."
It is manifest from the pretrial process that the defendant Marino was "compelled to stop suddenly." The trial process is controlled by the statements in the pretrial order. Rule 3:16, "Pretrial Conferences"; Jenkins v. Devine Foods, Inc. , 3 N.J. 450 (1950); Binder v. Green , 8 N.J. Super. 88 (App. Div. 1950). Cf. Sheild v. Welch , 4 N.J. 563 (1950). As to allegations of a pleading as an issue when not contained in pretrial order, see Schanerman v. Everett and Carbin, Inc. , 18 N.J. Super. 248, 258 (App. Div. 1952).
At the close of the plaintiffs' case, the trial court, on motion of counsel for the defendants-respondents, directed a verdict in favor of the defendants and against the plaintiffs on the ground: "* * * this is a case in which certainly the sole negligence for this happening is directly in the hands and within the power of the operator of the plaintiffs' automobile. * * * It is unfortunate that somebody was hurt,
but it seems to me that the young lady who was hurt will have to look to her husband for compensation, not to any of the defendants." (Appendix, 95a) The present appeal by plaintiffs-appellants is from that judgment of no cause for action in favor of the present defendants-respondents.
The sole question for resolution here on appellate review, is as to the action of the trial court in directing judgment against the plaintiffs-appellants.
Our examination of the testimony offered in behalf of the plaintiffs fails to disclose any act of negligence on the part of the defendants-respondents. Negligence is a fact which must be shown; it will not be presumed. 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. The mere showing of an accident causing the injuries or damage sued upon is not alone sufficient to authorize an inference of negligence. The existence of a possibility of a defendant's responsibility for plaintiffs' injuries and damage is insufficient. Our courts have held that "In the absence of direct evidence, it is incumbent upon the plaintiff to prove not only the existence of such possible responsibility, but the existence of such circumstances as would justify the inference that the injury was caused by the wrongful act of the defendant and would exclude the idea that it was due to a cause with which the defendant was unconnected. While proof of certainty is not required, the evidence must be such as to justify an inference of probability as distinguished from the mere possibility of negligence on the part of the defendant." Callahan v. National Lead Co. , 4 N.J. 150, 151, at pages 154-155 (1950), citing McCombe v. Public Service Railway Co. , 95 N.J.L. 187 (E. & A. 1920); Woschenko v. C. Schmidt & Sons , 2 N.J. 269 (1949). Vide also Simpson v. Duffy , 19 N.J. Super. 339 (App. Div. 1952). 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 R.R. Co. , 2 N.J. 318 (1949). At the end of the plaintiffs' case sub judice , there was no proof of facts to prove negligence, nor from which an inference of negligence could be made and the trial court properly entered a judgment of dismissal. McCombe v. Public Service Railway Co., supra; Church v. Diffany , 124 N.J.L. 100 (E. & A. 1939); Oelschlaeger v. Hahne & Co. , 2 N.J. 490 (1949); Alvino v. Public Service Railway Co. , 97 N.J.L. 526 (E. & A. 1922); Grugan v. Shore Hotels Finance & Exchange Corp. , 126 N.J.L. 257 (E. & A. 1940); Callahan v. National Lead Co., supra; McKinney v. Public Service Interstate Transp. Co. , 4 N.J. 229 (1950); Layton v. Healy , 12 N.J. Super. 459 (App. Div. 1951) and cases therein cited; Riley v. Weigand , 18 N.J. Super. 66 (App. Div. 1952); Gentile v. Public Service, etc. , 12 N.J. Super. 45 (App. Div. 1951) and cases therein cited.
Rule 3:41 of our present court rules provides for the dismissal of actions. Rule 3:41-2 provides that
"After the plaintiff has completed the presentation of his evidence * * * he shall so announce to the court, and thereupon the defendant, without waiving his right to offer evidence in the event the motion is not granted, may move for a dismissal of the action or any claim against him on the ground that upon the facts and the law the plaintiff has shown no right to relief. * * * Unless the court in its order for dismissal otherwise specifies, a dismissal under Rule 3:41-2 and any dismissal not provided for in Rule 3:41, other than a dismissal for lack of jurisdiction, operates as an adjudication upon the merits."
The attorney for the defendants-respondents moved for the dismissal of the action in behalf of his clients, under said Rule 3:41-2. The motion was granted and judgment entered accordingly. The trial court concluded that the plaintiffs have shown no right to relief upon the facts presented and the law here applicable. The trial court applied the rule that it must take as true all the evidence which supports the view of the party against whom the motion is made and ...