Matthews, Seidman and Horn. The opinion of the court was delivered by Seidman, J.A.D.
On August 13, 1971, at about 12:05 a.m., a Reading Company freight train consisting of 129 loaded coal cars, two empties, and three Diesel engines was proceeding through Woodbridge, in Middlesex County, on its way to Carteret. As it approached a spur leading into the adjoining Heil Co. plant the engineer observed that the switch was aligned for the siding, instead of the main track. Despite his immediate application of emergency brakes, the train could not be stopped in time. It went onto the spur, causing considerable property damage on the Heil premises before coming to a halt after being derailed.
Plaintiff Mack Trucks, Inc. filed a negligence action against Reading and Heil to recover $132,502.20 for damage to truck bodies and chassis which it had delivered to Heil for certain work to be done on them. Heil cross-claimed against Reading for the damage to its property in the amount of $35,129.14.
As a trial limited to the issue of liability, damages having been stipulated, Mack's claim against Heil was dismissed by the court. The jury resolved the issue of Reading's liability in favor of Mack and Heil. Thereafter, Reading moved for judgment n.o.v. and, alternatively, for a new trial. After hearing argument thereon, the trial judge granted the motion for judgment n.o.v. , with the proviso that if the court was
adjudged on appeal to be in error in this regard, then a new trial would be granted. Mack and Heil appealed from the resultant judgment, which recited only that "[o]n motion by the attorney for the defendant, Reading Co., the Court granted an Involuntary Judgment Dismissal [ sic ] as to the complaint of Mack Trucks, Inc. and the counterclaim of the Heil Co."
For reasons which follow, we reverse and reinstate the jury verdict.
We address ourselves first to the granting of the motion for judgment n.o.v. In reviewing the action taken by the trial judge we are required to consider whether he correctly applied the standard set forth in Dolson v. Anastasia , 55 N.J. 2, 5 (1969). On such motion (R. 4:40-2), the test is 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. * * * 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. [at 5]
It is not in dispute that the mishap was caused by an open switch which diverted the Reading train from the main track onto the spur leading into the Heil property. There was also uncontroverted proof at the trial that when a train passed in the opposite direction about three or four hours earlier, the switch was apparently aligned correctly; otherwise, it would have sustained damage. The clear inference was that sometime during those hours the switch was thrown by some unauthorized person or persons. There was no evidence that any freight cars were scheduled to be switched onto the Heil siding that night. Furthermore, the freight cars which were
on the Heil property had been placed there by a Reading switch crew on the day prior to the accident. Two or three times a week a switch crew came into the area of the Heil plant to place cars on its siding and also on others.
From the proofs adduced at the trial a jury could also have found these additional facts: In the course of the investigation following the accident a padlock used to secure the switch stand when not in use was found lying alongside the open switch. A sandy substance on the padlock matched a rock, broken parts of which were picked up nearby. Three or four years earlier a similar type of derailment had occurred on the Reading track within three miles of the Heil plant, caused, according to the police investigation, by juveniles who had broken open the lock that kept the switch in place. The railroad also had reports of five ...