Nelson v. Lehigh Valley Railroad

37 A.D. 631, 55 N.Y.S. 1094

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 15, 1899
• Status: Published

Opinion

Per Curiam :

When this case was before us on an appeal from the verdict and judgment rendered at the first trial, the questions involved relating to the alleged negligence were very fully examined, and the views of the court in respect thereto were expressed in the opinion then delivered by the late Judge Green, as reported in 25 Appellate Division, 535. Some additional evidence upon the second trial now brought in review was given by either side, and at the conclu-' sion of the evidence the trial judge directed a verdict for the defendant, being of the opinion that the new evidence had not made a case more favorable to the plaintiff than was presented at the first trial. Upon the first trial it appeared by some of the evidence that when the plaintiff received the injuries complained of, the train was running at a speed equal to fifty-five miles an hour. Upon the second trial more definite evidence was furnished as to the curves, the condition of the roadbed, and opinions were expressed as to the safety against derailment and breaking of appliances of a train running at a speed of sixty or more miles per hour. There was no derailment or breaking of appliances, and no injury came to plaintiff from any such cause. She rests her charge of negligence upon the great speed at which the train was running at the time of the accident, as well as upon the fact that the dining chairs were not fastened. The opinion considered these questions very fully, and the evidence given upon a second trial does not present a case that, under the opinion delivered, required the trial judge to submit it to the jury. He applied to the evidence presented the principles fouud in the opinion, and directed a verdict in accordance-with the principles laid down in the opinion. The plaintiff refers us to Distler v. Long Island R. R. Co. (151 N. Y. 424), and claims that, the evidence of that case supports the plaintiff’s right to have the question of alleged-negligence submitted to the jury. In that case it was held that, where the accident was. occasioned by mismanagement of the train, causing a sudden jerk and injury to the passenger, a question of fact was presented for the jury. Upon the evidence in this case,, the opinion to which we have alluded, and which is binding upon us, is to the effect that there was no mismanagement of the train-which caused the plaintiff’s injuries. The evidence was not changed at the second trial to such an extent as to warrant the trial judge in refusing to follow the doctrine of that opinion. We should adhere to that opinion and sustain the direction given by the trial judge. Follett, J., not sitting.