
    JOHN I. WALCUTT, PLAINTIFF-RESPONDENT, v. HOLIDAY MOTORS, INC., A CORPORATION, AND WILBUR E. TWITTY, DEFENDANTS-APPELLANTS.
    Superior Court of New Jersey Appellate Division
    Argued December 13, 1948
    Decided December 27, 1948.
    
      Before Judges Jacobs, Eastwood and Bigelow.
    
      Mr. Frederick W. Engel argued the cause of the defendants-appellants (Messrs. Sanderson and Engel, attorneys).
    
      Mr. Robert E. Beck argued the cause of the plaintiff-respondent (Messrs. Grosso and Beck, attorneys).
   The opinion of the court was delivered by

Eastwood, J. A. D.

This is a highway collision case. Defendant appeals from an adverse judgment returned by the Judge of Essex County District -Court, -sitting -without a jury, for the stipulated dam-ages of $200 to plaintiff’s auto-mo-bile, allegedly caused 'by negligence of defendant, Wilbur E. Twitty, operator of motor vehicle of defendant, Holiday Motors, Inc.

The issue is solely a factual -one, and for the purpose o-f this appeal the facts h-ave been stipulated. In these day-s of increasing motor traffic and the consequent risks incident thereto, this accident is not unusual, in that'it involved a collision between two automobiles at the intersection of two public thoroughfares, to wit: Park Avenue and_ Prospect Street, in the City of East Orange. There was -conflicting testimony on the question of negligence and contributory negligence. At the end of the plaintiff’s case, defendants moved for a non-suit which the court denied.

Defendants assert two grounds of appeal: (1) plaintiff was guilty of contributory negligence; and (2) that the court erred in refusing defendants’ motion for non-suit.

Under the procedure in effect prior to September 15, 1948, findings of fact by a trial judge -in the District Court on conflicting evidence, were conclusive on appeal. R. S. 2:32-202. Under present court Rules 1 :2-20 and 4:2-6, the appellate court may review the facts and make an independent finding. Rule 3:81-13. See also DeMoors v. Atlantic Casualty Insurance Company of Newark, 1 N. J. Super, 1, 61 Atl. (2d) 511 (App. Div. 1948); Tuzio v. Saylor, 1 N. J. Super. 61 (App. Div. 1948), recently decided. There was, however, ample evidence in the record here to justify the trial judge’s finding, and we see no justification for disturbing it.

Where, as here, the only basis for an appeal from an adverse judgment clearly appears to involve a controversial factual issue, we will not review the facts and make independent findings thereon, unless the interests of justice may so require.

The judgment below is affirmed, with costs.  