Erie R. Co. v. Healy

• Decision Date: 23 June 1920
• Docket Number: 2542.
• Citation: 266 F. 342
• Parties: ERIE R. CO. v. HEALY.
• Court: U.S. Court of Appeals — Third Circuit

266 F. 342

ERIE R. CO. v. HEALY.

No. 2542.

United States Court of Appeals, Third Circuit.

June 23, 1920

Collins & Corbin, of Jersey City, N.J. (George S. Hobart, of Jersey City, N.J., of counsel), for plaintiff in error.

George E. Cutley and Alexander Simpson, both of Jersey City, N.J for defendant in error.

Before BUFFINGTON, WOOLLEY, and HAIGHT, Circuit Judges.

BUFFINGTON Circuit Judge.

In this case Charlotte Healy, administratrix of John A. Healy, who was an employe of the Erie Railroad Company, brought suit against that company to recover damages for its alleged negligence, which, she contended, caused Mr. Healy's death. So far as here pertinent, the alleged negligence as stated in the declaration, was that the railroad 'caused to be propelled against the body of said John Healy a freight car, without giving him any warning of the approach thereof,' and the question before us, therefore, is whether there was such an absence of proof on that issue that the court below should have granted the defendant's motion for a compulsory nonsuit.

No principles of law are concerned; the question is wholly one of fact, namely, the presence or absence of proof warranting a submission of the case to the jury. We here note the plaintiff originally brought her suit and recovered a verdict in the Supreme Court of New Jersey. On review of the case the Court of Errors and Appeals of that state held a nonsuit should have been entered, reversed the case, and granted a venire de novo. Instead of availing herself of the second trial thus granted, with an opportunity to produce any available additional proof, the plaintiff discontinued her action in the state court and brought suit in the court below.

We have carefully examined the proofs in the latter case, and find they were, so far as substance is concerned, the same as those passed upon by the Court of Errors and Appeals. That court's discussion of the facts and its conclusions commend themselves to us, and as a discussion by this court would simply be an effort to state the same things in different language, we restrict ourselves to adopting as the opinion of this court the opinion of the Court of Errors and Appeals as reported in 91 N.J.Law, 325 102 A. 629, which is as follows:

'This is a fact case. The only question we need consider is whether there should have been a nonsuit for failure to prove negligence on the part of the defendant. The

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