Goldmann, Smalley and Schettino. The opinion of the court was delivered by Smalley, J.s.c. (temporarily assigned).
This is an appeal by the plaintiff Rema Bevilacqua, as administratrix ad prosequendum of Antonio Bevilacqua, her deceased husband, from an order of the Mercer County Court granting defendant's motion for a judgment of involuntary dismissal.
The facts and circumstances forming the basis for this action may be briefly stated. On the morning of Sunday, October 7, 1951, Antonio Bevilacqua, then 53 years of age, as a guest and invitee of the defendant, left Trenton with the defendant in the latter's car to go fishing at the shore. At about 2:05 P.M. of the same day, on the return trip, the defendant was operating his automobile on the Allentown-Lakewood Road proceeding toward Allentown, in the township of Millstone, Monmouth County, accompanied by plaintiff's decedent and one Mrs. Smith. At a point approximately four miles from Allentown, just after coming around a curve, defendant's automobile left the right side of the highway on which it was traveling, crossed over to the left of the highway over the shoulder of the road and an adjacent ditch, striking a pole and thereafter overturning. Extremely heavy rain was falling at the time of the above described accident. There were no skid marks left at the scene of the accident.
As a result of the accident Antonio Bevilacqua suffered a depressed fracture of the skull resulting in a cerebral hemorrhage subsequently determined to be the cause of his death an hour after the mishap.
Thereafter the plaintiff instituted suit for pecuniary losses sustained by her and the children of the marriage. In her complaint she alleges that
"* * * At the aforesaid time defendant owner negligently operated said automobile toward Trenton on the Allentown-Lakewood Road, a public highway, in the Township of Millstone, Monmouth County, N.J., so that said automobile went off the road and struck a tree. * * *"
The pretrial order (filed February 13, 1953) contains the statement that "The plf invokes the doctrine of res ipsa loquitur."
Plaintiff introduced testimony by State Trooper Godelsky -- who, with State Trooper O'Connor, had investigated the accident -- to the effect that he heard the defendant say, "he lost control of the car and skidded and swerved to the left of the road and hit the pole." In the course of the cross-examination Godelsky was handed and was permitted by plaintiff's counsel to read from an accident report prepared by O'Connor and signed by Godelsky, which said:
"Mr. Sutter states there was a bright flash of light, whether it was lightning or from nearby wires he could not say. Mr. Bevilacqua suddenly screamed and slumped across his lap, causing him to lose control and skid and strike a pole."
Godelsky was not in the hospital room the entire time that O'Connor interviewed defendant. He recalled that defendant had said that there was a flash and Bevilacqua threw up his hands, but did not recall anything being said in his presence about Bevilacqua slumping -- only that defendant said he didn't know why he lost control. O'Connor testified before Godelsky, but was asked no questions as to what defendant may have told him in the course of the hospital interview.
Defendant thereafter moved for a judgment of involuntary dismissal pursuant to Rule 3:41-2 upon the grounds that plaintiff did not establish a prima facie case of negligence and, further, that the plaintiff was precluded from invoking the doctrine of res ipsa loquitur because negligence ...