Erie R. Co. v. Kelly, 3255.

• Decision Date: 26 February 1925
• Docket Number: No. 3255.,3255.
• Citation: 4 F.2d 5
• Parties: ERIE R. CO. v. KELLY.
• Court: U.S. Court of Appeals — Third Circuit

4 F.2d 5 (1925)

ERIE R. CO. v. KELLY.

No. 3255.

Circuit Court of Appeals, Third Circuit.

February 26, 1925.

Collins & Corbin, of Newark, N. J. (George S. Hobart, of Newark, N. J., and Edward A. Markley and Chas. W. Broadhurst, both of Jersey City, N. J., of counsel), for plaintiff in error.

Alex. R. De Sevo and Alex. Simpson, both of Jersey City, N. J., for defendant in error.

Before BUFFINGTON, WOOLLEY, and DAVIS, Circuit Judges.

BUFFINGTON, Circuit Judge.

In the court below Julia A. Kelly, hereinafter called plaintiff, brought suit and recovered a verdict against the Erie Railroad Company, hereinafter called defendant, for injuries caused by its alleged negligence while she was a passenger on the ferryboat it operated. On entry of judgment, defendant sued out this writ. The question involved is the refusal of the court to give binding instructions in defendant's favor, on the ground that no negligence on its part was shown, and that plaintiff was herself guilty of contributory negligence.

An examination of the record leads us to the conclusion that the proofs and circumstances detailed below were such as called for their submission to the jury to pass on the question of defendant's negligence and plaintiff's contributory negligence.

The defendant operated a ferryboat, and plaintiff regularly traveled on it from her home in New Jersey to her work in New York. On the morning of the accident, and usually, the boat was crowded at the rush hour when she crossed, and by direction of those overseeing the on-coming of passengers, she passed into one of the two vehicle gangways which extended through the length of the boat, and from it started to go to the ladies' cabin. Finding the latter crowded, and seeing two vehicles standing in the gangway on that side, she crossed over to the other gangway. Here she found substantially the same condition; that is, the men's cabin crowded, and two vehicles ahead of her in the gangway. Thereupon she started to return to the other gangway, but in doing so got further forward, fell into an open coal hole, and suffered the damages for which she sues.

The case centers around this open hole. On the part of defendant, it is contended plaintiff had no right to cross from one gangway to the other at the place she did, and that in any event she was guilty of contributory negligence in doing so, and carelessly walked into an open hole. On the other hand, plaintiff contends that, being directed to use either of the gangways, and it being a common practice for her and other passengers to go through them, the defendant had reason to expect passengers might, in the crowded condition of the boat, cross from one gangway to the other, and that it was not due care on its part to have an open coal hole in a place where passengers might so cross.

As to the location of the coal hole, the proofs show that the whole vehicular driveway at the end of the boat was a level floorway. This floorway continued to be level and...