Ginsberg v. Delaware, L. & W.R. Co.

• Decision Date: 16 February 1924
• Docket Number: 3068.
• Citation: 296 F. 439
• Parties: GINSBERG et al. v. DELAWARE L. & W.R. CO.
• Court: U.S. Court of Appeals — Third Circuit

296 F. 439

GINSBERG et al. v. DELAWARE L. & W.R. CO.

No. 3068.

United States Court of Appeals, Third Circuit.

February 16, 1924

Harry Kalisch and Kalisch & Kalisch, all of Newark, N.J., for plaintiffs in error.

Frederic B. Scott, of New York City, for defendant in error.

Before WOOLLEY and DAVIS, Circuit Judges, and THOMSON, District Judge.

THOMSON District Judge.

This was an action to recover damages for personal injuries arising from the collision of a train with an automobile truck. David Ginsberg, the father of the other two plaintiffs, was driving the truck on a road running from Wharton to Kenvil, the accident occurring at the point where that road crosses the Delaware, Lackawanna & Western Railroad Company's tracks. One of the boys sat with his father on the driver's seat. The other was in the rear of the truck. When the truck was partly across the tracks, it was struck by the train; the father and one son being seriously and the other son fatally, injured. The suit is by the father, in his own behalf, as next friend of Harry Ginsberg and as administrator of the estate of his deceased son George. The court submitted the case to the jury, which rendered a verdict in favor of the defendant. From the judgment entered thereon, the plaintiffs bring error.

Two errors are assigned:

First that the court erred when it said to the jury:

'These are observations I am making for the purpose of fastening your attention upon what is the important feature in the case, as to whether the company itself is negligent. If it sounded the whistle, according to the statutory requirement, or if it rang the bell, according to the statutory requirement, there is no negligence, because there is nothing in the case which suggests there was negligence in any other aspect in the operating of that train.

The second assignment complains of the following instruction:

'The foreman said: 'If we find absolutely that the company was not negligent in sounding the legal signals, could we then possibly find for the boys?' The court said: 'No.' Foreman: 'We were practically agreed that that the company was not negligent.' The Court: 'No; you cannot find a verdict against the company, without finding that the company was negligent; but you could find that Ginsberg could not recover because he was contributorily negligent, but nevertheless the company cannot be found guilty unless it was negligent. I am not appealing for a compromise. I want to see if there is a possibility of reconciling your differences without an individual surrendering his God-given right."

To ascertain whether there was any error in these instructions, we must know exactly what the issue was between the parties. The negligence charged against the defendant is its failure to give any statutory signal of the approach of the train and to properly guard its crossing, and, under the circumstances, in operating its train at an excessive rate of speed.

While the plaintiff's declaration charges that under the circumstances the train was being operated at an excessive rate of speed we find no evidence to support this averment. Whether the statutory signals were, or were not, given, was a question of fact for the jury. This question was submitted to them under proper instructions, and the finding of the jury is conclusive as to the fact as found. The court, on the...