Opinion
Argued January 23, 1967 —
Decided February 20, 1967.
Appeal from Superior Court, Appellate Division.
Mr. John A. Pindar argued the cause for appellant ( Messrs. Pindar, McElroy, Connell and Foley, attorneys; Mr. Pindar, of counsel; Mrs. Sonia Napolitano, on the brief). Mr. George J. Shamy argued the cause for respondents ( Messrs. Pincus, Shamy and Sheehan, attorneys).
The opinion of the court was delivered
This action sought damages as a result of personal injuries sustained by the infant plaintiff following a fall from a play apparatus located in the yard of the defendant, who was a neighbor. The trial court granted a judgment of involuntary dismissal on the plaintiffs' opening. The Appellate Division, in an unreported opinion, reversed and remanded for a new trial on the thesis of impropriety in ordinarily dismissing a case before a plaintiff has introduced the evidence in support of his claim. We granted certification. 47 N.J. 574 (1966).
At the oral argument both counsel agreed that the facts were undisputed and that no more could be presented evidentially than was outlined in detail in the opening. In this posture, we are satisfied that there is not enough to raise a jury question as to any negligence by the defendant and therefore that the trial court was correct in dismissing the action.
The judgment of the Appellate Division is reversed and that of the trial court reinstated. No costs.
For reversal — Chief Justice WEINTRAUB and Justices JACOBS, FRANCIS, HALL, SCHETTINO and HANEMAN — 6.
For affirmance — None.