Eastwood, Jayne and Francis. The opinion of the court was delivered by Eastwood, S.j.a.d.
The plaintiff appeals from a judgment of dismissal entered at the end of the plaintiff's case in the Law Division, Monmouth County, on the ground of plaintiff's failure to make out a prima facie case of negligence.
The action is based upon a collision between plaintiff's decedent's motorcycle which was being operated in a southerly direction on State Highway 25, and the defendant's automobile, being operated on the same highway in a northerly direction. The collision occurred when defendant made a left-hand turn at the intersection of the highway with Styles Street, in Linden, New Jersey. The injuries sustained by the plaintiff's decedent caused his death.
A recital of the testimony is essential. At approximately 11:00 P.M., on the evening of October 18, 1952, the defendant was operating his automobile in the left lane of north-bound traffic on State Highway 25. At the point in question the highway has six lanes separated by a safety island, three north-bound lanes and three south-bound lanes, and a left-hand turn cut-off at the intersection of Styles Street, which street runs approximately at right angles to the highway. It is undisputed that the controlling traffic lights at the intersection were green to the north-south traffic on Highway 25. The defendant intended to turn left into Styles Street and upon approaching the intersection observed a truck proceeding in the opposite direction. He allowed the truck to pass and started to cross the intersection when he observed a motorcycle coming toward him, allegedly without any lights, which struck his automobile in the right side. The plaintiff's decedent was thrown to the ground and died shortly thereafter from the injuries he sustained.
Within a short time police officers arrived at the scene, one of whom obtained a statement from the defendant that: "I was making a left hand turn on South Styles Street off Edgar Road. There was a truck coming in the opposite way. I let it pass, then I started to cross. A motorcycle
was coming down without any lights on it and struck the right side of my car."
There were no eye witnesses to the collision. One Samuel Washington testified, however, that he was driving in the left lane of the south-bound traffic and came upon the intersection immediately following the collision; that traffic was very heavy that night; that it had halted some 1400 feet back for a traffic light at the Wood Avenue intersection and was proceeding on its way when, approximately 550 feet from the Styles Street intersection, he heard a loud crash. The vehicular traffic of which he was a part slowed down and stopped. After several minutes south-bound traffic proceeded slowly in a single right-hand lane toward Styles Street. As he passed the scene he observed the motorcycle and noticed the rear lights on. It is conceded that the motorcycle came to rest after the collision about in the center of the intersection between the safety isles which are on the north and south sides of Styles Street and that decedent's body was on the inside lane, or lane nearest the center safety island.
The trial court granted defendant's motion for dismissal, stating in part: "In the instant case, taking all the testimony that had been adduced by the plaintiff and giving the best legal inferences that may be given in favor of the plaintiff, I cannot find any evidence which, in any way, bespeaks of negligence of this defendant. As a matter of fact, I find no evidence of any kind that describes the conduct of this defendant, beyond the fact that he was making a left turn and that the motorcycle came, the front of the motorcycle came in contact with the right side of his automobile."
In passing upon the propriety of the trial judge's action, we recur to the established rule that the plaintiff was entitled to the benefit of all facts proven, together with all direct or indirect inferences which may be reasonably drawn from such facts. Pirozzi v. Acme Holding Company of Paterson , 5 N.J. 178, 185 (1950).
It must also be borne in mind that there exists a presumption of due care upon the part of the deceased person involved in a vehicular accident. Danskin v. Pennsylvania R.R. Co. , 79 N.J.L. 526 (E. & A. 1910). Cf. Lambert v. Emise , 120 N.J.L. 164 (Sup. Ct. 1938); Bergmann v. Public Service Railway Co. , 98 N.J.L. 487 (E. & A. 1923).
At the very outset, it is apparent that a question arises as to whether defendant's conduct in making the left-hand turn was such as to constitute a ...