Goldmann, Conford and Haneman. The opinion of the court was delivered by Haneman, J.A.D.
[59 NJSuper Page 447] Plaintiffs Frank Rivera, an infant, by his father and guardian ad litem , Justo Rivera, and Justo Rivera individually appeal from an involuntary dismissal granted in favor of defendants Columbus Cadet Corps of America (Columbus), a corporation of New Jersey, and Frank Farrell.
On July 25, 1956, the infant plaintiff, then 12 years of age, became a camper at the summer camp operated by Columbus. On July 26, 1956 about one-half hour after "lights out" the lights and the radio of the cabin to which plaintiff had been assigned went on and the boys engaged in a general melee involving loud noises, the throwing of pillows and towels and other similar conduct of harmless horseplay. No counselor or other person in a supervisory capacity was present in the cabin at the time.
After this disturbance had continued for about one-half hour, defendant Frank Farrell, the camp director, entered the cabin and shouted "Freeze." In response to his command, every boy stopped in the position in which this command found him. Plaintiff noticed that the boy from the upper bunk across the aisle had a pillow in position to throw at him. Frank Rivera testified, "He was standing right over me."
As punishment for their misbehavior, Farrell informed the boys that they would have to clean up the cabin the next morning and that there would be no regular camp activities for them until that task was completed. The boys then returned to their beds and all was quiet for the rest of the night.
The following morning, after religious services and breakfast, Jack Kirkwood, counselor for plaintiff's cabin, ordered a few of the boys, including plaintiff, to distribute the necessary cleaning equipment. Plaintiff placed the only broom in the cabin on the upper bunk across the aisle from his own, at the feet of the boy who slept in that bunk. In reply to the question, "And the boy at that time was lying in his bunk asleep, you say?" plaintiff stated, "He refused to work."
Plaintiff then sat down on his lower bunk in order to tie the laces in his sneakers. As he got up, he saw the broom coming at him out of the corner of his eye. "It came at me with terrific force, and it felt like somebody taking it and just giving you a shot in the eye." The broom handle
hit plaintiff's left eye, piercing his glasses and causing severe damage to the eye. The boy in the opposite bunk was not called to testify and neither plaintiff nor any witness produced in the case was able to testify how the broom was set in motion so as to come into contact with plaintiff's eye. No one in a supervisory capacity was in the cabin at the time of the accident. The counselor was "playing basketball, or something like that."
At the close of plaintiff's case, Columbus and Farrell moved for an involuntary dismissal, which the court granted on the ground that there was not sufficient evidence upon which the jury could reasonably differ and find wrongdoing on the part of either defendant.
Defendants admit that they owed the infant plaintiff a duty of due care to prevent injury to him. They deny, however, that plaintiff has presented any evidence from which a jury could reasonably find either negligence or proximate cause.
It is axiomatic that a court may not weigh the evidence on a motion for involuntary dismissal, but must accept as true all evidence which supports the view of the party against whom the motion is made and give him the benefit of all legitimate inferences which might be drawn therefrom in his favor. Shellhammer v. Lehigh Valley Railroad Co. , 14 N.J. 341, 345 (1954). The power of the trial judge to grant such a motion is not, however, restricted to an utter absence of all evidence of a contradictory purport. The "mere scintilla of evidence rule" does not prevail in New Jersey. Layton v. Healy , 12 N.J. Super. 459 (App. Div. 1951). An inference can be drawn only from proved facts and cannot be based upon a foundation of pure conjecture, speculation, surmise, or guess. 32 C.J.S. Evidence § 1044, pp. 1131, 1132 (1942).
"[A]n inference of probability of a defendant's responsibility in a negligence case, as distinguished from ...