Bazinsky v. Conklin

• Court: New Jersey Supreme Court
• Writing for the Court: BURLING; WACHENFELD
• Citation: Bazinsky v. Conklin, 8 N.J. 40, 83 A.2d 705 (N.J. 1951)
• Decision Date: 08 October 1951
• Docket Number: No. A--14,A--14
• Parties: BAZINSKY et al. v. CONKLIN.

Page 40

8 N.J. 40

83 A.2d 705

BAZINSKY et al. v. CONKLIN.

No. A--14.

Supreme Court of New Jersey.

Argued Sept. 24, 1951.

Decided Oct. 8, 1951.

Abraham I. Harkavy, Newark, argued the cause for appellant (Harkavy & Lieb, Newark, attorneys).

William R. Morris, Newark, argued the cause for respondent.

The opinion of the court was delivered by

BURLING, J.

This is a civil action sounding in tort, grounded in the alleged actionable negligence of the defendant, Nelson Conklin, in the operation of his automobile. The suit was instituted against him by Ida Bazinsky, Joseph Bazinsky and Morris Goldberg, plaintiffs, in the Law Division of the Essex County Court and, after a trial to court and jury, terminated in a verdict in favor of the defendant. The trial court, on motion for new trial, refused to disturb the verdict and judgment was entered thereon. Upon plaintiffs' subsequent appeal to the Appellate Division of the Superior Court the judgment was reversed and a new trial ordered upon the ground that the verdict was 'contrary to the evidence.' Thereupon the defendant addressed a petition for certification to this court which was granted.

There was sufficient evidence introduced by the defendant at the trial from which the jury were entitled to infer the non-existence of negligence. We have recently had occasion to declare that the appellate tribunal may not invade the constitutional office of the jury, and 'may not merely weigh the evidence where it is fairly susceptible of divergent inferences and substitute its own judgment for that of the jury,' although the judgment may be set aside if the verdict of the jury be so far contrary to the weight of the evidence as to give rise to the inescapable conclusion of mistake, passion, prejudice or partiality. Hager v. Weber, 7 N.J. 201, 210, 81 A.2d 155 (1951). This principle governed the review of facts on appeal under Rule 1:2--20(a) at the time of the judgment rendered below. This was decided in the Hager case. The rule has since been amended to state this principle in the following language:

'1:2--20. Review on Facts; New Trial.

'(a) on a review of any cause involving issues of fact not determined by the verdict of a jury, new or amended findings of fact may be made, but due regard shall be given to the opportunity of the trial court to judge of the credibility of the witnesses. On a review of any cause involving issues of fact determined by the verdict of a jury, the contention that the verdict was contrary to the weight of the evidence shall not be advanced or entertained unless application for new trial on that ground was first made to the trial court in accordance with the rules and denied. A verdict of a jury shall be set aside as against the weight of the evidence if, having given due regard to the opportunity of the trial court and the jury to pass upon the credibility of the witnesses, it clearly and convincingly appears that the verdict was the result of mistake, partiality, prejudice or passion.' (Amended June 7, 1951).

Evidence on the issue of negligence introduced at the trial was in material aspects conflicting as hereinafter indicated. The incident occurred at about 6:30 p.m., on December 24, 1947, on Stuyvesant Avenue in the City of Newark, in this State. The plaintiffs presented proofs to the effect that the vehicle occupied by them was parked close to the curb. They testified that the street on which their car was parked was 35 feet wide, enough width for four cars abreast, and that the street was icy in spots; to this extent there appears to have been agreement on the part of the defendant. Plaintiffs further testified that there were no vehicles parked on the opposite side of the street but were contradicted by the defendant who contended...