Miller v. DELAWARE, LACKAWANNA AND WESTERN R. CO., 197
| Decision Date | 14 February 1957 |
| Docket Number | Docket 24315.,No. 197,197 |
| Citation | 241 F.2d 116 |
| Parties | Myrtle Mary MILLER, Infant by Edward Miller her Guardian ad Litem, and Edward Miller, Individually, Plaintiffs-Appellants, v. The DELAWARE, LACKAWANNA AND WESTERN RAILROAD COMPANY, Defendant-Appellee. |
| Court | U.S. Court of Appeals — Second Circuit |
John Francis Noonan, Rochester, N. Y., for plaintiffs-appellants.
Sayles & Evans, and Pierre W. Evans, Elmira, N. Y., for defendant-appellee.
Before CLARK, Chief Judge, and LUMBARD and WATERMAN, Circuit Judges.
The guardian and father of a nine year old girl sues on behalf of himself and his daughter for injuries which the child sustained when she was struck by a Diesel locomotive on the railroad's right of way near Perkinsville, New York. The railroad is a Pennsylvania corporation and was sued in the federal court because of diversity of citizenship.
There is substantial evidence in the record from which the jury could have found these facts: Accompanied by her brother, Myrtle Miller was walking along the eastbound track journeying from her home westward toward Perkinsville, N. Y. The freight train which struck the child had just left a siding traveling on the westbound track at a speed of about 5 miles per hour. When she saw the train approaching, the girl attempted to cross the tracks in front of it while it was only 20 feet away. She tripped on the outside rail and the freight struck her leg.
Testimony was introduced to show that because of the construction of the Diesel locomotive the engineer would be unable to see anyone of the girl's size for a distance of 50 feet from the front of the locomotive.
This appeal is based on several grounds: that the verdict is not supported by the evidence; that the trial judge committed error in his charge; and that the plaintiff's motion for a new trial should have been granted because two jurors were guilty of concealment in not relating, when questioned on the voir dire, that their fathers were retired New York Central employees.
That the evidence supported the verdict of the jury is too clear to require further comment.
Nor do we find error in the charge of the district judge for it correctly stated the applicable law of New York regarding the duty which the railroad owed to Myrtle Miller under the circumstances. Clearly the infant was a trespasser, Zambardi v. South Brooklyn Ry. Co., 1939, 281 N.Y. 516, 24 N.E.2d 312, and the only duty which the railroad owed her was to abstain from affirmative acts of negligence. Mayer v. Temple...
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