George Muryn v. New York Central Railroad Company

270 F.2d 645, 1959 U.S. App. LEXIS 3292

Opinion

270 F.2d 645

George MURYN, Plaintiff-Appellant,
v.
NEW YORK CENTRAL RAILROAD COMPANY, Defendant-Appellee.

No. 9, Docket 24770.

United States Court of Appeals Second Circuit.

Argued Oct. 7, 1959.
Decided Oct. 7, 1959.

Daniel Galinson, New York City (Bromsen & Gammerman, New York City, on the brief), for plaintiff-appellant.

William L. Shumate, New York City (Gerald E. Dwyer, New York City, on the brief), for defendant-appellee.

Before LUMBARD, WATERMAN and FRIENDLY, Circuit Judges.

PER CURIAM.

The plaintiff having consented to go to the jury on the factual issues, by his failure to move for a directed verdict, will not be heard now to challenge the verdict for the defendant on the ground of the insufficiency of the evidence. Jorgensen v. York Ice Machinery Corporation, 2 Cir., 1947,160 F.2d 432.

In any event, we are of the opinion that a jury question was presented by the evidence regarding the operation by the defendant's employee of an electrical transporter, as a result of which a three foot iron pipe was thrown through the air striking and injuring the plaintiff.

Judgment affirmed in open court.

WATERMAN, Circuit Judge, concurs in the result.