Goldmann, Freund and Conford. The opinion of the court was delivered by Freund, J.A.D.
[35 NJSuper Page 472] The plaintiffs, Josephine Liberatori, her daughter Stella Matthews and her son James Liberatori, were all passengers in an automobile operated by another son, William Liberatori, one of the defendants. On a clear night they were travelling along the White Horse Pike from their home in Philadelphia to Sicklerville, New Jersey. As they reached Lawnside, New Jersey, William realized that they had forgotten his mother's medicine, and he decided to return to Philadelphia for it. Thereupon, he made a left-hand turn off the highway into the open driveway of a cemetery. According to the brothers' testimony, William then backed his car out of the driveway at a right angle. Both
testified that as the car reached the road edge, the visibility was good and they made an observation of the road. James testified that it was clear for about 200 yards. William testified that when the car had been backed to where the right rear wheel was slightly on the shoulder and the left rear wheel was on the highway edge, he saw a pair of headlights approaching, and he stopped to allow the vehicle to pass. About five to seven seconds later, his car was hit in the right rear by a taxicab owned by the defendant, Yellow Cab Company, and operated by its employee, Charles Kelley.
Kelley testified that after having delivered a passenger he was driving north along the White Horse Pike at about 35 miles per hour; for some distance he had been following a car about 75 feet ahead of him; as he approached the cemetery "it wasn't too well lit," and there were no lights or markers indicating a driveway leading onto the highway. Further, that when he was about 20 feet from the driveway he noticed a shadow which he was unable to identify, and before he could apply his brakes, he felt an impact on the right side of the taxi.
A resident of a house directly across the highway from the driveway testified that the rear lights of the defendant Liberatori's car were not lighted as he backed out of the driveway. Another resident of the area testified that after the accident William said that he had looked and had not seen any car, and "didn't know where the hell it came from."
The passengers in the Liberatori car instituted this action against William Liberatori, the Yellow Cab Company, and its driver, Charles Kelley. The Cab Company cross-claimed against William Liberatori for damages to its cab. William Liberatori cross-claimed against the defendants, Yellow Cab Company, and Charles Kelley for property damage and personal injuries. The jury returned a verdict against the Cab Company and Charles Kelley in favor of the plaintiffs -- Josephine for $10,510.50, James for $745 and Stella for $5,213.25. A verdict of no cause of action in favor of the defendant William and against the plaintiffs was returned, as well as a verdict of $744.25 in his favor on his cross-claim
against the defendants Yellow Cab Company and Charles Kelley.
The defendants Yellow Cab Company and Kelley moved for a new trial, which was denied. The Cab Company and Kelley appeal from the judgments against them, and the plaintiffs appeal from the dismissal of their claim against William Liberatori.
Appeal is on a number of grounds; they will be disposed of as argued in the appellants' brief.
The defendants contend that the trial court erred in refusing to grant its motion to dismiss at the completion of the plaintiffs' opening statement to the jury, on the ground that it was devoid of any factual outline of how, when or where the accident occurred. Alexander v. Manza , 132 N.J.L. 374 (E. & A. 1945). The plaintiffs admit that their opening statement might have been more artfully constructed.
The law is settled that a summary disposition on the plaintiffs' opening should not be employed unless the facts are undisputed and the law involved is not in doubt. Ross v. Orr , 3 N.J. 277 (1949); Sole v. Clifton Colonial Gardens, Inc. , 14 N.J. Super. 575 (App. Div. 1951); Okker v. Chrome Furniture Mfg. Corp. , 26 N.J. Super. 295 (App. Div. 1953). Assuming, but not conceding, that the court did err in denying the defendants' motion for non-suit, this alleged error was cured by evidence subsequently adduced at the trial which raised sufficient factual issues to be submitted to the jury. It has been held:
"As to a refusal to nonsuit on the opening, we do not wish to be understood as subscribing to the proposition that, if the opening fails to state facts constituting the cause of action set up in the complaint, the court is irretrievably in error for refusing to nonsuit. The rule is settled, in cases where nonsuit was wrongly denied on the plaintiff resting his case, that, if facts supporting the cause of action are elicited thereafter, the error is cured. By analogy, it would seem that a similar rule should apply in ...