Opinion
Argued August 1, 1949 —
Decided September 15, 1949.
Appeal from the District Court of Hudson County.
Before Judges CLEARY, LLOYD and STANTON.
Mr. James A. McTague argued the cause for the plaintiff-appellant.
Mr. Herman H. Wille, Jr. ( Mr. Carl T. Freggens, attorney) argued the cause for the defendant-respondent.
Plaintiff brought an action in the Hudson County District Court for damages to its bus resulting from a collision with a trolley car of defendant. The court below dismissed the action at the close of plaintiff's case on the ground that there was no proof of negligence.
There was evidence that plaintiff's bus, in a line of traffic, was proceeding in a northerly direction on Bergen Avenue, Jersey City, in the daytime; that it continued across Sip Avenue toward the plaza at Journal Square; that it was struck at its right rear end by defendant's trolley car which was moving in a westerly direction on Sip Avenue; that Sip Avenue is 50 or 60 feet wide; that as the bus entered Sip Avenue its driver observed the trolley car about 150 or 200 feet away; that as the bus approached Sip Avenue it was moving at the rate of about 20 miles per hour, but the speed was reduced to five or ten miles per hour as it crossed Sip Avenue due to the slowing down of the traffic ahead, which included two busses that made turns after entering the plaza; that plaintiff's driver noticed that the trolley car was moving but was unable to say at what rate of speed; that he made no further observation of the trolley car before the collision.
On defendant's motion for a dismissal, plaintiff's evidence and every inference of fact that can be legitimately drawn therefrom is regarded as true for the purpose of the motion; and if such evidence or inference of fact is sufficient to support a verdict for plaintiff, the motion must be denied. Fine Jackson Trucking Corp. v. Lehigh Valley Railroad Co., 110 N.J.L. 385 .
The jury could have concluded from the evidence that the trolley car was driven at an unsafe rate of speed, that its operator did not have it under proper control and that he failed to make proper observation of the traffic before him.
The facts in Baca v. Public Service Co-ordinated Transport, 128 N.J.L. 8 , are rather similar and the former Court of Errors and Appeals there held that the evidence of plaintiff called for a defense. We hold that opinion here.
The judgment should be reversed and the cause remanded to the District Court for a new trial.