203 F. 968 | 2d Cir. | 1913
It appears from the record that upon the trial evidence was offered by the plaintiff in support of his allegations to the effect that the train did slacken its speed at Dummerston station and then after the deceased had gone upon the platform, started with a jerking motion. So it appears, on the other hand, that the defendant “claimed and the defendant’s evidence, tended to show that there was no irregular motion or sudden jerk of the train after the brakes were released at Dummerston/’
Tiius upon the pleadings and the evidence the question was presented for the jury whether the defendant, in addition to breaking its contract with the plaintiff’s intestate, so negligently operated its train as to lead him into a place of danger and then throw him off.
•‘That to entitle the plaintiff to recover the jury must be satisfied by a fair balance of evidence that the plaintiff’s intestate’s injury was occasioned as*970 alleged in tlie declaration by reason of tlie plaintiff’s intestate being violently thrown from the car upon which he was standing.”
This request was a proper one. .„The plaintiff was bound to establish the averments of his declaration that his intestate was injured by being thrown from the train. The trial judge apparently recognized that the request was proper but said:
“The reason why I don’t comply with that request is that the defendant practically concedes that unless the deceased was guilty of contributory negligence, the defendant company is liable because they did not operate that train as they were in duty bound to do under the contract.”
The defendant excepted to this refusal “and to the charge as given relating to the subject-matter of said requests.”
Deciding this case upon the record — as we must — we are constrained to hold that the trial judge erred in his refusal to charge as requested. No concession appears anywhere that the defendant was negligent as charged in the declaration. The only concession shown is that the defendant did not dispute that it failed to stop, the train at Dummerston according to its contract. But, as already pointed out, it also claimed that there was no sudden jerk of the train. In other words we can find nothing in the record to show that the defendant intended to abandon one of the thelories upon which it had apparently defended the case, viz.: that while it had broken its contract with the deceased, such breach did not .cause the injury, and to rely altogether upon the defense of contributory negligence.
This error alone makes a reversal necessary and we are not required to examine at length the other assignments. But as a new trial will follow, it is proper, to say that we have carefully examined the record and are of the opinion that the evidence presented was sufficient to warrant the submission of the questions of negligence and contributory negligence to the jury.
The judgment of the District Court is reversed.