Court of Appeals for the Second Circuit

Freida Mandel and Sam Mandel v. Pennsylvania Railroad Company

291 F.2d 433

July 17, 1961 · Docket 379, Docket 26830

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Opinion

PER CURIAM.

Mr. and Mrs. Mandel were passengers on one of defendant’s trains, en route from New York City to Hot Springs, Arkansas, when the accident which gave rise to this action occurred. Near 1 a.m., Mrs. Mandel, while walking to the ladies’ lavatory in the rear of the car, fell and was injured. Alleging that her fall was caused by the wet and slippery condition of the car’s floor, the inadequacy of lighting, the manner in which the train was operated, and its speed, the Mandéis commenced this action in the Supreme Court of the State of New York, Kings County. It was removed to federal court by reason of diversity of citizenship. The jury returned a verdict of $20,000 for Mrs. Mandel and $2,000 for Mr. Mandel, upon which judgment was entered. Defendant appeals.

Defendant’s principal claim of error relates to the charge. Actually, however, the judge charged the jury in accordance with the rules of law that defendant invokes. His charge, the relevant portions of which are set out in the margin,1 was that unless there was evidence of “extraordinary swaying or jerking or jolting,” none of which he himself remembered, the operation of the train was prudent, but that this would not prevent a finding of negligence based on the floor and lighting conditions. Concerning these items there was adequate evidence. It must be presumed that the jury’s verdict was based on negligence thus properly found and not, contrary to the charge, upon extraordinary swaying of which there was no evidence.

Defendant also attacks the conduct of the trial and the admission of testimony, but points to nothing which would warrant reversal. Accordingly, the judgment is

Affirmed.

.

. “Now, in determining every one of these facts, and the testimony generally, and in giving the weight, you should and must use your good common sense, your experience, and we know from experience that every train sways, and comes to a stop.

“The Court has no independent recollection of any testimony as to whether there was any extraordinary swaying or jerking or jolting of this train. Of course, if you find that there was no extraordinary jolting or swaying or jerking of this train, then you should find that the operation of this train, as far as the movement of this train, was prudent, and there was no negligence in this particular aspect.

“That does not mean, that if you find an absence of swaying or jerking, that you still can not find that there was debris or slush and an absence of light that caused the injury.”

“The Court has no independent recollection of any testimony as to whether there was any extraordinary swaying or jerking or jolting of this train.Of course, if you find that there was no extraordinary jolting or swaying or jerking of this train, then you should find that the operation of this train, as far as the movement of this train, was prudent, and there was no negligence in this particular aspect. “That does not mean, that if you find an absence of swaying or jerking, that you still can not find that there was debris or slush and an absence of light that caused the injury.”