Davidson, Speakman and Pindar. The opinion of the court was delivered by Pindar, J.s.c. (temporarily assigned).
Defendant appeals from judgments entered upon the verdicts of a jury in the Bergen County Court. Plaintiff Edward Anton Nathan, an infant (hereinafter designated Edward), was awarded the sum of $15,000 for personal injuries, and plaintiffs Albert L. Nathan and Norma Nathan (hereinafter designated parents), the sum of $5,000 as consequential damages.
The complaint in the first count charges that defendant-producer of a certain electric fixture, marketed as "Electriglas Thermolite," had the duty to exercise reasonable care in the manufacture thereof, but that the said fixture was defective, improperly made and carelessly and negligently manufactured by defendant; that upon installation in the bedroom of Edward, while in use and operation the fixture "developed a fault which caused molten glass therefrom to fall from its location" upon the crib and Edward, seriously injuring him. The second count demands that the parents be compensated for resulting medical and hospital expenses for Edward, as well as for deprivation of his earnings and services now and in the future.
By answer defendant admitted that it manufactured and marketed the fixture aforementioned and that it was under a duty to exercise reasonable care, but denied careless and negligent manufacture as charged, including any and all liability. As separate defenses defendant set forth: (a) if a fault developed the result was not because of manufacture, but from the manner of installation by someone other than defendant for which faultiness defendant is not liable; (b) if a fault developed the result was from improper treatment,
installation, maintenance or use by plaintiffs or their servants, agents or employees, or by a person, firm or corporation other than defendant, without liability to it; and (c) that defendant owed no duty or obligation to plaintiffs, in that no privity existed between defendant and plaintiffs, reserving the right to move for dismissal under failure of complaint to state a legal cause.
It is here noted that upon completion of plaintiffs' case defendant moved for a dismissal "on the ground that there had been a failure to prove a prima facie case." That motion was denied. Thereupon, defendant closed its case and the matter was submitted to the jury, who rendered the aforestated verdicts.
Supported by long-settled law, defendant's motion to dismiss admitted and extended to plaintiffs the benefit of all legitimate inferences logically deductible from their factual proof to support a prima facie case.
Recent reiteration of the above related law is expressed by our Supreme Court in an opinion by Chief Justice Vanderbilt in O'Donnell v. Asplundh Tree Expert Co. , 13 N.J. 319 (1953). There the court reversed the entry of involuntary judgments of dismissal, and, 13 N.J. , at page 328, said:
"In the absence of statutory directives to the contrary, negligence is not presumed, but must be established by competent proof, Callahan v. National Lead Co. , 4 N.J. 150, 153 (1950); and where fair-minded men might honestly differ as to the conclusions to be drawn from the proofs, the question at issue must be submitted to the jury, Antonio v. Edwards , 5 N.J. 48, 52 (1950). And where, as here, we are concerned with a judgment of involuntary dismissal, the court must accept as true all the evidence that supports the position of the party against whom the motion is made, and it must give him the benefit of all the inferences in his favor that may logically and legitimately be drawn therefrom, McKinney v. Public Service Interstate Transportation Co. , 4 N.J. 229, 243 (1950)."
After denial of defendant's motion the uncontradicted record was transmitted to the jury as triers of the fact. It then became the legalistic province of the jury to weigh the proof. In that respect it was the indubitable function
of the jury to accept or reject the credibility of the evidence and belief of the testimony. Reserved to them was the right to conclude that defendant's negligence was justifiably probable as distinguished from the possibility of such negligence. Hansen v. Eagle-Picher Lead Co. , 8 N.J. 133, at page 141 (1951). The ...