The opinion of the court was delivered by BIGELOW, J.A.D.
The plaintiff was injured and his wife killed in a collision between their automobile and a truck
The appellant's answer admitted ownership of the truck which was driven by Amodeo at the time of the accident. The plaintiff offered no evidence that Amodeo was the servant of Hinz, acting within the scope of his employment, but relied upon the presumption arising from ownership of the truck. Edgeworth v. Wood, 58 N.J.L. 463 (Sup. Ct. 1896). For the effect of presumptions generally, see O'Dea v. Amodeo, 118 Conn. 58, 170 A. 486 (Conn. Sup. Ct. Err. 1934) and article by Professor Morgan, 44 Harv. L.R. 906. Hinz, in his testimony, admitted that Amodeo was in his employ but denied, in effect, that he was acting within the scope of his employment. Amodeo did not testify; Hinz himself was the only witness for the defense. This was the substance of his testimony: Hinz was in the food and produce business. Amodeo drove a truck for him and hawked the produce from the truck. The afternoon before the accident, Hinz told Amodeo, "Pick me up tomorrow morning at about 4 o'clock; we are going to Hightstown." He told him meanwhile to leave the truck in front of his, Amodeo's, home or at the yard where Hinz' trucks were usually parked when not in use.
The accident occurred at 1 o'clock in the morning at Webster Avenue and Griffith Street, in Jersey City. It is appellant's contention that Amodeo could not have been pursuing his master's business, at the hour and at the place where the truck collided with plaintiff's automobile. Hinz testified that his yard was located at 224 Railroad Avenue; that Amodeo lived seven or eight blocks away, "on Monmouth Street, right
"Where do you live? Ege Avenue — 317 Ege Avenue.
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Now, how far does Amodeo live from your yard? Maybe about 7 or 8 blocks.
What is the address? Exactly, offhand I don't know his address, but he lives on Monmouth Street right off of Fourth.
Where is your place of business? Railroad Avenue.
And Railroad Avenue is one block in back of Newark Avenue, is it not? No, two blocks back of Newark Avenue.
And Fourth Street and Monmouth is how many blocks from Newark Avenue? Two blocks.
So, it is four blocks, from your yard to his home? No, mine is up in the middle of the block.
Oh, it is four and a half blocks. Excuse me. So, he lives four and a half blocks away from your place of business at 224 Railroad Avenue? That's right."
Note that Newark Avenue and the street number, 224, on Railroad Avenue were first mentioned by plaintiff's attorney and not by the witness.
A trial court may take judicial notice of those geographical facts that are the subject of such general knowledge in the place where the court is held, that jurymen, drawn from the vicinage, may reasonably be expected to be familiar with them. Katz v. Helbing, 205 Cal. 629, 271 P. 1062; 62 A.L.R. 625 (Cal. Sup. Ct. 1928); Paulauskis' Case, 126 Me. 32, 135 A. 824 (Me. Sup. Jud. Ct. 1927). Cf. Connett v. United Hatters, 76 N.J. Eq. 202 (Ch. 1909), and Stubbins v. Atlantic City Elec. Co., 136 N.J. Eq. 327, 333 (Ch. 1945). And see 31 C.J.S., Evidence, § 33, p. 586. The trial of this
Let us first consider the circumstance that Amodeo did not testify. The unexplained failure of a party to produce a witness whom he would naturally be expected to call, permits the inference that his testimony would have been unfavorable to that party. Roach v. Yellow Cab Co., 6 N.J. Misc. 386 (Cty. Ct. 1928); Series Publishers, Inc., v. Greene, 9 N.J.Super. 166 (App. Div. 1950). And see annotations in 70 A.L.R. 1326 and 5 A.L.R.2d 893. Hinz testified that Amodeo stopped working for him right after the accident, but that he still had a key to the gate at Hinz' yard; that Amodeo was in court while Hinz was testifying and that the two men lunched together that day. On the other hand, the record shows that plaintiff voluntarily surrendered a default that had been entered because of Amodeo's failure to answer, and that plaintiff proceeded to trial against Hinz alone, while still holding his case against Amodeo. From these circumstances, Hinz argues that it was to Amodeo's interest that responsibility be fastened on Hinz and that to use Amodeo as a witness would have been too risky. All in all, we believe the inference is justified that Hinz procured Amodeo's attendance in court, that during lunch they discussed the case, that Hinz concluded that Amodeo's testimony
The presumption that Amodeo was acting within the scope of his employment when the accident took place, was rebuttable. To overcome the presumption, Hinz relied on his own testimony to the effect that Amodeo was not acting within the scope of his employment. His testimony was uncontradicted. If it was clear, was not reasonably subject to diverse interpretation, and was not of such character that the jury would be justified in disbelieving it, the trial court should have taken the case from the jury and awarded judgment for the appellant. Doran v. Thomsen, 76 N.J.L. 754 (E. & A. 1908); Patterson v. Surpless, 107 N.J.L. 305 (E. & A. 1930); Dooley v. Saunders U-Drive Co., 109 N.J.L. 295 (E. & A. 1932); Hoffman v. Lasseff, 110 N.J.L. 122 (E. & A. 1933); Kirrer v. Bromberg, 113 N.J.L. 98 (Sup. Ct. 1934). But if the evidence was not clear, or if contradictory inferences could be drawn, or if, in the situation presented, the jury was not required to accept the evidence as true, the issue was properly left to them. Mahan v. Walker, 97 N.J.L. 304 (E. & A. 1922); Tischler v. Steinholtz, 99 N.J.L. 149 (E. & A. 1923); Venghis v. Nathanson, 101 N.J.L. 110 (E. & A. 1925).
Assuming that Hinz' testimony was true, were the inferences to be drawn from it clear? Amodeo was to call for Hinz about 4 A.M. on the day of the accident. If the meeting place agreed upon was Hinz' residence, it seems to follow that Amodeo was not acting within the scope of his employment at the time of the accident. But Hinz did not testify, no one testified, that the meeting place was the Ege Avenue house. In that respect, the testimony was not as clear as it should have been.
The question whether the trier of the facts must accept uncontradicted testimony as true, was considered with care in In re Perrone, 5 N.J. 514 (1950). While uncontradicted testimony should ordinarily be taken as true and ought not be capriciously rejected, yet it may be rejected
Taking into consideration the total situation, we conclude that the denial of the motion for judgment was not erroneous and that the judgment should be affirmed.