Clapp, Jayne and Francis. The opinion of the court was delivered by Jayne, J.A.D.
The trial of this action was concluded by a jury verdict in favor of the defendant of no cause of action. The application of the plaintiffs for the allowance of a new trial was denied by the trial judge. The present appeal transports the consequential final judgment to us for appellate review.
Primarily we observe from our examination of the transcription of the testimony introduced at the trial that unlike the characteristics commonly noticeable in negligence cases, here the factual circumstances are not in a state of substantial dispute.
Thus, the determination of the credibility of the testimony of the witnesses in those particulars was not as is usual in such cases a nethermost controversial problem, if any, for the respected determination of the jury. This is a distinguishable feature of the case which we pause at the outset to accentuate.
Therefore the question confronting us in the present appeal, as we view it, is whether in the light of the established facts and the applicable principles of law the verdict of the jury is manifestly a perversion or deprivation of justice.
In its present state this case represents a rare exemplification of what a jury evidently for some irrational reason regarded as the exercise of reasonable care in the commission of a legally unjustifiable and injurious reckless act.
Now the indubitable facts. The defendant has been a member of the police department of the City of Newark for the past 12 years. On the morning of June 11, 1953 his particular assignment was to patrol and to prevent vehicular congestion on West Park Street. In the pursuit of his duty he observed at about 11:45 A.M. an unoccupied motor vehicle parked on West Park Street in front of the entrance to the self-service liquor department of Klein's store. He entered the store to ascertain and direct the owner of the vehicle to remove it, and coincident with his entrance the department manager was discovered detaining an unidentified man who was endeavoring to steal some bottles of liquor. The manager, Mr. Levine, at once imparted this information to the defendant.
Let us listen to the defendant's explanation:
"Q. What happened from there on? A. I walked over to the colored man. He had a shopping bag in his hand. Mr. Levine had him by the arm. As I approached him I was on the side of him. He give me a shove and he knocked me aside and he ran. As he ran, he was going to the door. A woman was coming in the door, and he halted her with his hands and he knocked her down and her head struck the floor. She lay there and he jumped over her and I went around the side of her. Then when he got outside by the sidewalk somebody tripped him. He went down on his hands and he went a couple of times like this. He went half-way out in the street. He got here, then he made a sudden swerve and he went toward West Park Street.
Q. Now he's running along West Park Street. What did you do? A. I hollered 4 times 'Halt' and he kept on running.
Q. Then what did you do in reference to your revolver? A. I aimed the gun at his leg, real low, for the calf of his leg or his heel, to hit his heel ...