Gaulkin, Foley and Lewis. The opinion of the court was delivered by Foley, J.A.D.
This is a negligence case brought under the authority of N.J.S.A. 39:6-78 which, in circumstances here presented, permits an action against the Director of the Division of Motor Vehicles by one injured in an accident arising out of the ownership, use or maintenance of a motor vehicle when the identity of the vehicle and the owner and operator thereof cannot be ascertained.
The complaint is in two counts. Charlotte Poland brought suit for personal injuries; her husband sought consequential damages for out-of-pocket losses and deprivation of the services and consortium of his wife. The jury returned a single verdict of $10,000 on both counts. Subsequently, defendant
moved for a new trial upon the ground that the verdict was "a result of mistake passion partiality or prejudice and against the weight of the evidence," see R.R. 4:61-1, and for a judgment notwithstanding the verdict upon the ground that "the plaintiff was guilty of contributory negligence as a matter of law." R.R. 4:51-2(a). The record of the ruling on the motions indicates that it then was the court's intention to set aside the verdict "with relation to damages only," the court directing counsel to prepare an order to that effect. However, the order presented by defendant's attorney, consented to as to form by plaintiffs' attorney and executed by the judge, merely directed that "defendant's motion be and hereby is dismissed."
The appeal is predicated upon the contentions that: (1) a motion made for dismissal on plaintiffs' opening should have been granted; (2) plaintiff failed to make out a prima facie case and, thus, defendant's motion for dismissal at the close of her evidence should have been granted; (3) judgment n.o.v. should have been entered upon the ground that plaintiff was guilty of contributory negligence as a matter of law; and (4) the joint verdict in favor of the two plaintiffs is defective on its face.
Our present practice does not favor a dismissal on plaintiff's opening to the jury. A motion for dismissal then made should not be granted unless the facts are undisputed and the law free from doubt. Passaic Valley Sewerage Com'rs v. Geo. M. Brewster, etc., Inc. , 32 N.J. 595, 606 (1960); Farkas v. Middlesex Board of Freeholders , 49 N.J. Super. 363, 367 (App. Div. 1958). Moreover, even when the court errs in denying a motion addressed to the opening, the error is cured if evidence subsequently adduced raised factual issues to be submitted to the jury. Liberatori v. Yellow Cab Co. of Philadelphia , 35 N.J. Super. 470, 474 (App. Div. 1955). See also Glass v. American Stores Co., Inc. , 110 N.J.L. 152, 155 (E. & A. 1933). The case is rare indeed where the interests of justice will not be served by withholding action on, or by denying, the motion and receiving proof. Passaic Valley,
A motion for dismissal made at the close of plaintiff's case admits the truth of plaintiff's evidence and every inference of fact that can be legitimately drawn therefrom which is favorable to the plaintiff, and denies only its sufficiency in law. Melone v. Jersey Central Power & Light Co. , 18 N.J. 163, 170 (1955).
Mrs. Poland's testimony, when viewed in a light most favorable to her, would permit a jury to conclude that while standing on the shoulder of Route 130, a four-lane highway, and seeking a ride, she was struck by a passing vehicle which was not brought to a stop after the accident, notwithstanding that the driver knew or should have known of the collision. Such conclusions, if made, justified an inference of negligence on the part of the hit-and-run driver. The court, therefore, properly denied the motion for judgment made at the close of plaintiffs' case.
Defendant did not move for judgment of involuntary dismissal at the close of the entire case. As we have noted, he subsequently moved for judgment n.o.v. in conjunction with his alternate motion for a new trial. Defendant now argues that "at the conclusion of the entire case, or on motion for judgment n.o.v. the court should have taken the case sub judice from the consideration of the jury." Under this point he limits his argument to a ...