Opinion
Argued March 2, 1959 —
Decided March 17, 1959.
Appeal from Superior Court, Appellate Division.
Mr. George Pellettieri argued the cause for plaintiff-respondent ( Messrs. Pellettieri Rabstein, attorneys; Mr. Lewis C. Stanley, on the brief).
Mr. Richard J.S. Barlow, Jr., argued the cause for defendant-appellant ( Messrs. Lenox, Giordano Lenox, attorneys).
In this rather unusual case the Appellate Division held that the issue of defendant's negligence should have been submitted to the jury for determination. Consequently, it reversed the action of the trial court in granting the motion for judgment for the defendant after all of the evidence had been submitted. 50 N.J. Super. 538 ( App. Div. 1958). We granted certification.
At the oral argument the parties were in agreement that the legal question to be decided is whether the evidence and the inferences therefrom are susceptible of the conclusion that during the holdup defendant engaged in a course of conduct designed to incite or suggest resistance to, or attack upon, the armed bandit by his business invitees, one of whom was the plaintiff. Since the parties agree that it expresses the controlling test to be applied in situations such as the present one we accept it for the disposition of this case.
Resolution of the question, however, depends upon the facts adduced at the trial. That proof has been detailed in the opinion under review and need not be restated here. Careful analysis thereof has led us to the conclusion that no basis existed for submitting the posed inquiry to the jury for determination. To do so would be to permit the claim to be decided upon pure speculation and conjecture as to the import of defendant's actions during the progress of the attempted robbery. Under the circumstances, the judgment appealed from is reversed and that of the trial court is reinstated.
For reversal — Chief Justice WEINTRAUB, and Justices HEHER, BURLING, JACOBS, FRANCIS and PROCTOR — 6.
For affirmance — None.