On appeal from Superior Court, Appellate Division, whose opinion is reported in 30 N.J. Super. 95.
Jersey Central Power & Light Co. case: For affirmance -- Chief Justice Vanderbilt, and Justices Burling, Jacobs and Brennan. For reversal -- Justices Heher and Oliphant. Tears case: For affirmance -- Chief Justice Vanderbilt, and Justices Oliphant, Burling, Jacobs and Brennan. For reversal -- Justice Heher. The opinion of the court was delivered by Burling, J.
[18 NJ Page 168] These appeals arise from a civil action sounding in tort, grounded in the alleged actionable negligence of the defendants Jersey Central Power & Light Co., a corporation of the State of New Jersey, and its employee truck driver, Edward J. Walling (hereinafter referred to as Jersey Central and Walling), in respect of the operation of a maintenance truck, and the alleged actionable negligence of the defendant Leo J. Tears (hereinafter referred to as Tears), in respect of the operation of an automobile of the private passenger-carrying category. The plaintiff Sylvester P. Melone (hereinafter called Melone) was a passenger in Tears' automobile at a time when it collided with Jersey Central's truck. Melone instituted the action in the Superior Court, Law Division, against the three defendants hereinbefore named. A jury rendered verdicts in favor of Melone and against all three defendants, and assessed damages in the sum of $15,000. Judgment was entered on the verdict. The defendants' motions for new trial were denied and they appealed to the Superior Court, Appellate Division. The judgment was affirmed by the Superior Court, Appellate Division, unanimously as to Tears and by a divided vote as to Jersey Central and Walling. Melone v. Jersey Central Power & Light Co., 30 N.J. Super. 95 (App. Div. 1954). Jersey Central and Walling appealed to this court under N.J.
Const. 1947, Art. VI, Sec. V, par. 1 clause (b). Cf. R.R. 1:2-1(b). Tears petitioned for certification, which we allowed. Melone v. Tears, 16 N.J. 195 (1954).
There is no dispute as to the fact of collision. In this respect the undisputed facts are that the collision occurred about 4:00 A.M. on Sunday morning, August 31, 1952 (during the Labor Day week-end). It was dark and rainy (although there is dispute as to whether the precipitation was light or heavy). The site of the collision was an intersection of State Highway Route 36 and Broad Street, in the Borough of Keyport, New Jersey, about 32 miles from Jersey City.
Automatic traffic signals, overhead lights of the red-ambergreen variety, existed at this intersection, and in addition the intersection was illuminated by two overhead arc lights. State Highway Route 36 at this location was 44 feet wide from curb to curb and consisted of a northbound and a southbound traffic lane of concrete paving, each ten feet wide, the two traffic lanes being separated by a painted white line, and each lane flanked on the curb side by a macadam strip 12 feet in width.
The truck involved was a heavy-duty line repair truck, weighing between four and five tons, to which would be added its load. Walling, the driver, had stopped the truck in the northbound traffic lane on Route 36 at the intersection in obedience to the traffic signal. When he attempted to resume forward motion the motor of the vehicle stalled, apparently as a result of overheating.
Tears' vehicle was a passenger type automobile (a sedan of the model year 1947). The collision which occurred was of the "rear end" variety -- Tears was operating his vehicle in the northbound traffic lane of Route 36 when it came in contact with the rear of the stopped truck. Melone was a passenger in Tears' vehicle.
Both vehicles were damaged by the impact and Tears and Melone sustained personal injuries. In addition to Melone's action against the three defendants, there was an independent action by Tears against Jersey Central and Walling. The
Tears action resulted in a verdict and judgment for the defendants therein, which Tears did not appeal.
The present appeals stem from the Melone action. We hereinafter treat the two appeals separately.
I. THE JERSEY CENTRAL-WALLING APPEAL
The questions involved in the appeal of Jersey Central and Walling are whether the Superior Court, Appellate Division, erred in affirming the denial by the Superior Court, Law Division, of the Jersey Central and Walling motions (a) to dismiss Melone's action at the close of the plaintiff's case; (b) to enter judgment for Jersey Central and Walling at the close of the reception of all the evidence; and (c) for a new trial, on the ground that the verdict of the jury was against the weight of the evidence.
A motion for judgment of dismissal admits the truth of the plaintiff's evidence and every inference of fact that can be legitimately drawn therefrom which is favorable to the plaintiff and denies only its sufficiency in law. And on a motion for judgment the trial court cannot weigh the evidence but must 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. These are settled juridical concepts. And it is equally well established that a jury verdict is not to be set aside as against the weight of the evidence unless it clearly and convincingly appears that the verdict was the result of mistake, partiality, prejudice or passion. Cf. R.R. 1:5-3(a), as amended June 28, 1954, effective September 8, 1954.
There is no dispute as to the duty of reasonable care owed by Jersey Central and Walling to Melone. The contention of defendants Jersey Central and Walling is that Melone produced no evidence of negligence on their part, nor evidence that any action or inaction of theirs proximately caused the collision with its resultant injuries to Melone. Their emphasis on this appeal is placed upon Tears' alleged negligence.
If there was evidence of negligence attributable to the defendants Jersey Central and Walling which proximately caused the event, although coupled with negligence of Tears, then the defendants Jersey Central and Walling are liable to Melone. The applicable rule was quoted by Mr. Justice Wachenfeld from Matthews v. Delaware, L. & W.R. Co., ...