Eastwood, Goldmann and Francis. The opinion of the court was delivered by Eastwood, S.j.a.d.
At the conclusion of the trial the Law Division, on defendant's motion, entered a judgment of dismissal from which the plaintiffs appeal. Plaintiffs' action was instituted for the recovery of damages occasioned by the accidental injury of the infant plaintiff and for the recovery for the loss of services and out-of-pocket expenses suffered by the father, Vincent James Garafola.
On July 29, 1950 Vincent J. Garafola took his wife and two sons, Andrew, age 6 years, and Raymond, age 9 years, to the Palisades Amusement Park for an evening's entertainment. At approximately 9:30 P.M. Mr. Garafola purchased tickets for his sons for a miniature railroad train ride. The train was owned and operated by the defendant for the amusement of the park patrons. One side of the passenger cars was closed and the other open for approximately chest height of the patrons. The train traveled on permanent tracks similar to a regular railroad and traveled at approximately 15 miles per hour during its operation.
At one point in the route of the train the track curved near a tree, the distance therefrom being a matter in dispute. On the night in question the two children were seated together in the last seat of the coach, Andrew sitting next to the closed side of the coach and Raymond, the plaintiff, on the open side of the coach. During the ride, Raymond testified that he put his arm over the side of the coach and
was adjusting the sleeve of his shirt when his arm struck the tree, forcing his wrist against the car causing him the injury complained of. There were no eye witnesses to the happening of the accident. At the end of the ride Raymond was found by his parents in his injured condition. He was taken to the park doctor and from there home. The next morning he was taken to Saint Vincent's Hospital where it was learned that he suffered a fracture of the distal end of the radius and ulna bones, the two bones of the forearm at the wrist.
Plaintiffs allege that the injury was caused by the negligence of the defendant in having its device constructed in a defective manner, failing to warn patrons of impending danger caused by the presence of the tree and failure to employ sufficient safeguards to properly protect patrons using the train.
Defendant admitted ownership and operation of the miniature train, but denied any guilt of negligence in either the construction or maintenance of the device or in its operation, and as affirmative defenses contended that plaintiff voluntarily assumed the risk and contributed to the happening of the accident by his own negligence.
At the end of plaintiffs' case the defendant moved for a dismissal which motion was denied. Again, at the conclusion of the entire case defendant moved for an involuntary dismissal of plaintiffs' action. The court granted defendant's motion stating that there was no proof of any departure from standard construction; that there was testimony in plaintiffs' case that there was no necessity of warning patrons of the presence of the tree, and that the proofs failed to establish the happening of an accident, for the reason that it is alleged that the child's elbow struck the tree and there was testimony that the clearance space between the train and the tree was greater than the length of the child's arm from his shoulder to his elbow.
The plaintiffs contend that there was sufficient evidence from which the jury might reasonably find want of proper
care by the defendant under the circumstances; that the matter should have been submitted to the jury for determination; that the jury might find defendant guilty of negligence in laying out the tracks and operating its railroad, even though there was no proof of deviation from a standard; that reading the deposition of defendant's superintendent did not make him plaintiffs' witness and that his reasons for laying the tracks as he did was material to the issue and should have been admitted. Plaintiffs further argue that their witness, Fromer, should have been allowed to testify as an expert on miniature trains by reason of his training and experience; that the photograph produced by defendant was taken posed, did not represent the conditions at the time of the accident and should not have been admitted into evidence; that the court erred in refusing to permit the plaintiff Raymond Garafola to rebut the defendant's testimony that the car would not sway; that the court erred in excluding testimony of Vincent Garafola as to the amount of the medical bills.
The predominant question presented for consideration in the present appeal is whether the evidence introduced in behalf of the plaintiffs, together with all of the favorable inferences logically and legitimately to be drawn therefrom, adequately presented a cause of action against the defendant. We therefore direct our attention to the scope and probative content of the evidence.
The proofs proffered by plaintiffs indicated that defendant operated a train in a park area containing trees; that there were no lights on the trees; that there was no warning of possible obstructions or impending dangers en route; that the light upon the train track was not of sufficient strength to clearly illuminate the area; that the panel height of the sides of the cars was less than two feet; that the top of the panel was approximately midway between the plaintiff Raymond's elbow and shoulder; that at one point the train tracks curved near a tree; that the clearance distance between the coach, at the point where Raymond was seated.
and the tree adjacent to the tracks, was approximately 19 inches. The injured plaintiff asserted that his arm definitely struck the tree as he passed and forced his hand against the side of the car. The plaintiffs sought to establish that in the forward motion of the train around the curve the rear portion of the car (where Raymond was seated) would swing on its swiveled wheels closer to the tree than the 19 inches measured in stationary position. Defendant's witness testified that he found the measured distance to be 23 inches from the center of the car and conceded that it would be "a couple of inches less" from the last seat in the car. Sway of cars while in motion was denied by the defendant. Plaintiffs' attempt to rebut the denial of swing or sway of the train was excluded and will be considered elsewhere in this opinion.
It has been repeatedly held by our courts that in considering defendant's motion for judgment of dismissal, 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 that may be drawn therefrom in his favor. McKinney v. Public Service Interstate Transp. Co. , 4 N.J. 229 (1950). And where fair-minded men might honestly differ as to the conclusions to be drawn from the facts whether controverted or uncontroverted, the questions at issue should be submitted to the jury. Antonio v. Edwards , 5 N.J. 48 (1950); Sokol v. Liebstein , 9 N.J. 93, 98 (1952).
"Generally, whether a particular act constitutes negligence is a mixed question of law for the court and fact for the jury; and negligence cases in which a nonsuit may be allowed or a verdict may be directed are exceptional. On a motion for nonsuit all conflicts in testimony, even those produced by a mathematical calculation to show that the plaintiff's evidence that an object was not visible from a certain point was contrary to fact, must be resolved in favor of the plaintiff. In many cases, the peremptory disposition of the cases has been held to constitute reversible error. A cause should never be withdrawn from the jury unless it appears as a matter of law that a recovery cannot be had upon any view of the facts which the evidence reasonably tends to establish. Nevertheless, there are instances
in which the court can say that failure to act was negligence as matter of law, and others where it can say that such failure was not negligence, and between the extremes there is a zone in which the question must be submitted to the jury. As a general rule, the issue or issues of negligence and contributory negligence are to be determined by the jury, and ordinarily should not be disposed of by the court in a peremptory manner. * * *" 38 Am. Jur., Negligence, sec. 344, pp. 1041-1042.
In the matter sub judice the determination of the questions involved depended upon an evaluation of the testimony and legitimate inferences that were conflicting, and it is our opinion that fair-minded men might well have differed as to the conclusions to be reached therefrom. There was conflicting evidence regarding the distance from the car to the tree. One view of the evidence might indicate that the distance was such that it would have been impossible for the boy to have struck the tree. On the other hand, considering all of the legitimate inferences flowing from the evidence on the question of distance, the jury might have found that the boy's story was credible. But most important is the boy's testimony that his injury occurred when his arm came into contact with the tree. In granting the motion of dismissal the ...