July 16, 1932
DELAWARE, L. & W. R. CO.
Appeal from the District Court of the United States for the District of New Jersey; William Clark, Judge.
Before BUFFINGTON, WOOLLEY, and DAVIS, Circuit Judges.
BUFFINGTON, Circuit Judge.
The question involved in this case is whether the court should have given binding instructions for defendant. The testimony of plaintiff was that, as the railroad train neared his station, he rose, and, standing firmly on this feet, he took hold of the seat in front of him. While in that position, he attmepted to get his brief case from the rack. He says there were then two violent lurches of the car -- one forward, one backward. As a result, with such violence as to break his kneecap. At the same time the brief case was shaken from the rack and struck him.He was corroborated by the testimony of the witness Nickel, who was accustomed to ride on this train for several years. He said, "there was a violent lurch, which is unusual at any time * * * it was an unusual lurch which no train ordinarily has in the ordinary operation of it. It seemed to me it was a sudden application of the air brakes." He said plaintiff fell down suddenly. After reaching the station, plaintiff was carried off in a wheel chair.
Of the fact of his fall, of the violence of it in turning the seat in front of him, of the dislodging of the brief case, there was no dispute. There was no evidence on which to base the assumption that his fall was occasioned by a side movement of the car. There was evidence tending to show that the forward and backward lurch seemed to be caused by an application of the brakes.
In view of these facts and the cases of Field v. D.L. & W. R.R. Co., 69 N.J. Law, 433, 55 A. 241, and Irvine v. D. L. & W. R.R. Co. (C.C.A.) 184 F. 664, the court committed no error in refusing to take the case from the jury.
Its judgment is affirmed.
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