Conford, Freund and Labrecque. The opinion of the court was delivered by Conford, S.j.a.d.
Plaintiff sued to recover damages for his personal injuries sustained when he fell, as he claims, from an open vestibule of a train car operated by defendant on which he was riding as a passenger June 3, 1958. The injuries were extremely serious and extensive. The trial court permitted the case to go to the jury after reserving decision on defendant's motions for an involuntary dismissal and for judgment in its favor on the ground no prima facie case of negligence and proximate cause was established by the proofs. The jury returned a verdict of $50,000 in favor of plaintiff. Thereupon plaintiff applied for a new trial as to damages only, the verdict being contended to be grossly inadequate. Defendant renewed its motion for judgment, and, in the alternative, moved for judgment notwithstanding the verdict or for a new trial on all issues.
The trial court granted defendant's motion for judgment notwithstanding the verdict. The order further provided, pursuant to R.R. 4:51-2(b), that in the event of reversal on appeal, a new trial be awarded defendant on the ground, among others, that the verdict was the result of compromise. There were other provisions in the order not pertinent in view of our conclusions on the appeal.
We first consider the appellate complaint against the grant of judgment in favor of defendant notwithstanding the verdict. In passing upon a motion for such relief the trial court may not weigh the evidence but must accept
as true all evidence which supports the position of the adverse party and give him the benefit of all legitimate inferences susceptible therefrom in his favor. Kopec v. Kakowski , 34 N.J. 243, 244 (1961). We thus assay the proofs in that light.
Plaintiff boarded the 7:46 A.M. train of the Central in Plainfield on June 3, 1958, as was his custom as a daily commuter. The train was an express to Jersey City and made no stops en route. There was nothing unusual about the plaintiff's conduct or demeanor that morning insofar as his wife, who drove him to the station, or two friends and fellow passengers could see. He had dressed with particular care as he was to attend a company dinner that evening. There had been a conductor in the car, but he was not present when plaintiff went into the vestibule or when the fall from the train occurred. After a smoke in the smoking car, plaintiff arose with the intention of going to the next car forward, a nonsmoker; he carried his topcoat and newspaper. He walked to the front of the car, opened the door to the vestibule, swung it back, and, as he testified, "that's the last thing that I recall until I awakened in the hospital." In consequence of plaintiff's falling out of the moving car, his head was severely traumatized by contact with the ground. A brain surgeon testified that plaintiff was suffering from amnesia as to the details of the accident -- a common sequela of a severe head injury -- which could be permanent.
There was evidence that at the time of the fall the train was in course of rounding a 63 degrees curve to the left at a speed of 50-55 miles per hour (plaintiff fell from the right side). The defendant produced one of its employees, a brakeman named Stauffer, who testified he witnessed the fall from his position in its Bayonne Yard. He said plaintiff "stepped down from the platform, and stepped down the three steps and off into the air" while the train was going at least 50 miles per hour. "He had a topcoat over his arm and a briefcase." However, two Bayonne policemen who investigated
the accident the same morning testified Stauffer told them at the time he did not know anything about it.
The hospital records of the Bayonne Hospital were introduced in evidence. They contain different and conflicting versions of the accident, both purportedly emanating from the plaintiff shortly after his removal to the hospital on the morning of June 3, 1958, suffering from a "compound depressed skull fracture," among other injuries. Page 3 of the exhibit, written by an intern, Dr. Alonso, states: "Upon interrogation patient says he became suddenly despondent and jumped off a moving train with resultant serious injuries." Page 14, over the signature of Dr. Boyle, the attending physician, contains the following:
"Upon interrogation patient states that somebody told him he jumped off a moving train. He says he does not remember doing so. He describes memory of sitting, looking out window of smoking car and attempting to change cars while train was in motion. He remembers a vestibule and an open door and ...