For reversal and remandment -- Chief Justice Weintraub and Justices Jacobs, Francis, Hall, Schettino and Haneman. Opposed -- None. The opinion of the court was delivered by Hall, J.
This is a motor vehicle rear end collision case. A car operated by the defendant ran into one driven by the plaintiff Joyce Dolson, which was proceeding in the same line of traffic. She sued for personal injuries and her husband, the co-plaintiff, for consequential damages. The jury returned a verdict of no cause for action and the trial court denied plaintiffs' motion for a new trial made on the ground that the verdict was against the weight of the evidence. The Appellate Division affirmed, one judge dissenting. In addition to the main opinion, a concurrence was filed by the other judge who voted to affirm. All three opinions are unreported. The case is here by reason of the dissent. R.R. 1:2-1(b), now R. 2:2-1(a)(2).
The basic issue before us concerns the standard to be applied by the appellate court in reviewing a trial court's action on a motion for a new trial following a jury verdict. The question has been a confused one in view of seemingly differing expressions in a succession of opinions dealing with the subject. The latest of these is Kulbacki v. Sobchinsky, 38 N.J. 435 (1962), which has been read to severely restrict the scope of appellate review in such situations. The main opinion in the case at bar followed this view, holding that, under the appellate standard supposedly there prescribed, the trial court's action could not be disturbed. The dissenter concluded that, even despite such strictures on appellate review, there had been a denial of justice calling for a reversal of the trial court's determination and a new trial.
The concurring judge projected the issue squarely. His entire opinion reads:
"If I were the trial judge, I would have granted plaintiffs' motion for a new trial. However, he did not, and in the light of Kulbacki v. Sobchinsky, 38 N.J. 435 (1962), I agree we must affirm."
We take this to mean that he believed that the verdict was against the weight of the evidence so as to constitute a denial of justice, but that, because the trial judge decided otherwise, even though wrongly, the supposed limitations on appellate review precluded so holding. In view of the evidence here, this amounts to saying that there is almost a complete bar to appellate interference with lower court action on a new trial motion. This is an erroneous view of the appellate role and indicates the need for clarification and restatement of the proper standard.
Reference should first be made to the distinction between a motion for a new trial after a jury verdict as against the weight of the evidence (R. 4:49-1(a)) and a motion for involuntary dismissal at the end of the plaintiff's case (R. 4:37-2(b)), a motion for judgment at the close of all the evidence or at the close of the evidence offered by an opponent (R. 4:40-1), or a motion for judgment notwithstanding the verdict (R. 4:40-2). In the case of motions for involuntary dismissal, the test is, as set forth in R. 4:37-2(b) and equally applicable to motions for judgment, whether "the evidence, together with the legitimate inferences therefrom, could sustain a judgment in * * * favor" of the party opposing the motion, i.e., if, accepting as true all the evidence which supports the position of the party defending against the motion and according him the benefit of all inferences which can reasonably and legitimately be deduced therefrom, reasonable minds could differ, the motion must be denied. Bozza v. Vornado, Inc., 42 N.J. 355 (1964); Bell v. Eastern Beef Co., 42 N.J. 126 (1964); Franklin Discount Co. v. Ford, 27 N.J. 473, 490 (1958). The point is that the judicial function here is quite a mechanical one. The trial court is not concerned with the worth, nature or extent (beyond a scintilla) of the evidence, but only with
its existence, viewed most favorably to the party opposing the motion.
The trial judge's obligation on a motion for a new trial because the verdict is said to be against the weight of the evidence is quite a different and more difficult one. It is clear that such a motion may be properly granted although the state of the evidence would not justify the direction of a verdict. Franklin Discount Co. v. Ford, supra (27 N.J., at 490). A process of evidence evaluation, -- "weighing" --, is involved, which is hard indeed to express in words. This is not a pro forma exercise, but calls for a high degree of conscientious effort and diligent scrutiny. The object is to correct clear error or mistake by the jury. Of course, the judge may not substitute his judgment for that of the jury merely because he would have reached the opposite conclusion; he is not a thirteenth and decisive juror. It was said in Kulbacki, "[w]hat the trial judge must do is canvass the record, not to balance the persuasiveness of the evidence on one side as against the other, but to determine whether reasonable minds might accept the evidence as adequate to support the jury verdict * * *." 38 N.J., at 445. This does not mean that the test is the same as on a motion for judgment. Rather what was meant was that in ruling on a motion for a new trial, the trial judge takes into account, not only tangible factors relative to the proofs as shown by the record, but also appropriate matters of credibility, generally peculiarly within the jury's domain, so-called "demeanor evidence", and the intangible "feel of the case" which he has gained by presiding over the trial. The whole process is well summed up in the dissenting opinion in Kulbacki: "the question is whether the result strikes the judicial mind as a miscarriage of justice, * * *", 38 N.J., at 459. This is the standard intended to be conveyed by R. 4:49-1(a), although expressed negatively and somewhat redundantly: "The trial judge shall not, however, set aside the verdict of a jury as against the weight of the evidence unless, having given due regard to
the opportunity of the jury to pass upon the credibility of the witnesses, it clearly and convincingly appears that there was a manifest denial of justice under the law." The rule might be more precisely stated as "the trial judge shall grant the motion, if, having given due regard to the opportunity of the jury to pass upon the credibility of ...