Majority
Headnote
Judgment and order affirmed, with costs.&emdash; Appeal from a judgment entered upon a verdict directed for the defendant at a Trial Term held in Monroe county, and from an order denying plaintiff’s motion for a new trial upon the minutes. The action was commenced on the 26th of April, 1896, to recover damages for personal injuries alleged to have been sustained by the plaintiff while a passenger upon the defendant’s railroad, in a dining car, while the train was going east between Mauch Chunk and Allentown, on the 9th day of August, 1894. Plaintiff, in company with three other ladies, was seated atf a table in a dining car on a train going east. It was conceded that the chairs in which the party were seated were not fastened down. There was no very definite evidence as to the precise spot where the accident occurred. The train was bound east and left Mauch Chunk at six-seventeen p. m., and some of the witnesses say the accident occurred fifteen or twenty minutes after leaving Mauch Chunk. Plaintiff claims that she received the injuries when the train was going around a curve at a high rate of speed, and that itfgave a lurch and threw her from her cha’r towards the aisle against a table. She testifies: The table struck me in the abdomen, about the center, and then there was another lurch, I think more violent, and I was thrown, and the chair was thrown hack, and I went diagonally across in this space between those tables. * * * I should say that the speed of the train at the time of the accident was very fast.”—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.
Cases cited
- Distler v. Long Island Railroad 151 N. Y. 424 p. 631