Price, Sullivan and Lewis. The opinion of the court was delivered by Price, S.j.a.d.
[76 NJSuper Page 452] By this appeal plaintiff seeks to reverse the action of the Superior Court, Law Division, granting defendant's motion for summary judgment. R.R.
4:58-3. The motion was based on plaintiff's factual assertions contained in his deposition, his answers to interrogatories, and the claimed basis for recovery of damages against defendant as expressed in the statement of his alleged cause of action at pretrial conference and incorporated in the subsequent pretrial order. Defendant, on appeal (as in the trial court in support of its motion for summary judgment), "accepts, without qualification, the plaintiff's version of the facts as gleaned" from the aforesaid sources. It contends that thereby it is shown palpably that there is no genuine issue as to any material fact challenged and that it is entitled to a judgment as a matter of law.
In assessing the propriety of the trial court's action in the case at bar, the burden is on defendant to "exclude any reasonable doubt as to the existence of a genuine issue of material fact." All inferences of doubt in the instant case are to be drawn against defendant (the movant) in favor of plaintiff. United Advertising Corp. v. Borough of Metuchen , 35 N.J. 193, 196 (1961); Sokolay v. Edlin , 65 N.J. Super. 112, 120 (App. Div. 1961). So viewed, we consider the proofs which the trial court had before it in concluding that defendant should as a matter of law prevail on its motion for summary judgment.
Plaintiff's depositional description of the circumstances surrounding the happening of the accident disclosed that on the night of January 7, 1961 he went to defendant's New Brunswick station with the intention of going to Newark by train. He purchased a ticket. Ascertaining that the scheduled departure of the train was not imminent, he "walked around to kill time" and also stopped at a nearby tavern where he consumed "about two" bottles of beer. Returning to the station, he reached the track level via an escalator and, as he did so, "heard the train whistle" and observed the train in motion "just taking off." He "made a run for it." Endeavoring to board the moving train, he "grabbed hold of the left-hand bar," reached "the second step of the train" and "was trying to reach the right-hand bar when the train
gave a sudden jerk" and he "landed on the platform" and "passed out unconscious." (The complaint alleged that he "lost his leg and sustained serious * * * injuries.") Amplifying his aforesaid testimony, he said that he ran along the platform "about half" of the length of a coach, which he thought was the "next to the last car" on the train, "got onto the train" and was "on the second step" (later, he said: "I went on the first [step] and was trying for the second step"), when "the train gave a jerk." He also stated in his deposition that the train was "picking up speed" as he attempted to board it. He further testified as follows:
"Q. And when you say you boarded the train on the first or second step, the train was picking up speed? A. Yes.
Q. As it usually does. Isn't that right? A. That's the time when it jerked me, it was picking up speed.
Q. When you say 'jerk' you mean it was picking up speed? A. Yes.
Q. This is what it usually does when it picks up speed from slow speed to a faster speed? A. Uh huh.
Q. Right? A. I guess so, sir.
Q. When you say 'jerk' what you really mean is it is going a little faster than from [ sic ] before? A. Yes.
Q. Picking up speed? A. That's right.
Q. This is nothing unusual? A. No.
Q. This is just picking up speed? A. That's right."
The pretrial order contains plaintiff's description of the accident in the following terms:
"Plf. contends that on Saturday Jan. 7, 1961, he was attempting to board a Pennsylvania Railroad train destined for Newark at the New Brunswick railroad station. At the time the plf. attempted to board the train it was in motion with the door entrance still in the position for receiving passengers. As he boarded the train the train jerked and plf. fell under the train. Plf. contends that the deft. was negligent in that it permitted the entrance to remain open while the train was in motion and that it negligently operated its train."
Plaintiff answered an interrogatory, which sought plaintiff's "version of the accident," as follows:
"Plaintiff was attempting to board a P.R.R. train destined for Newark at the New Brunswick station. At the time ...