Opinion
The circumstance that no accident arising out of the same type of construction, used in fifty other coaches of the defendants and in coaches in use on several other railroads, had ever been reported to the defendants' claim agent furnished strong evidence that there was no negligence on the part of the defendants in using that type of construction in the coach in question. The evidence was insufficient to afford a reasonable basis for a conclusion that the train was stopping in so unusual a manner as to constitute negligence.
Argued October 8, 1942
Decided November 10, 1942.
ACTION to recover damages for personal injuries, brought to the Superior Court in Fairfield County and tried to the jury before O'Sullivan, J.; verdict for the plaintiff, which the court set aside, and from this action the plaintiff appealed. No error.
Samuel E. Friedman, with whom was Irwin E. Friedman, for the appellant (plaintiff).
Edwin H. Hall, with whom, on the brief, was James W. Grady, for the appellee (defendant).
The plaintiff brought this action to recover for injuries suffered when he fell in a passenger coach of a train operated by the defendant trustees. The jury rendered a verdict in his favor and he has appealed from the ruling of the trial court setting it aside. His claim is that as he rose to leave his seat one foot was caught between a footrest attached to the seat in front of him and some mechanism under that seat and he was thrown to the floor of the car by the lurching of the train as it was coming to a stop. He charges the defendants with negligence in the way in which the footrest and mechanism were constructed and in the lurching and jolting of the car. The uncontradicted evidence was that the car was a modern air-cooled coach, that the same type of construction was used in about fifty coaches delivered to the defendants by the manufacturer and in coaches in use on several other large railroads and that no accident caused by the mechanism in question had ever been reported to the defendants' claim agent who had supervision of all claims arising in Connecticut. These circumstances furnish strong evidence that there was no negligence on the part of the defendants in using the type of construction embodied in the coach. Godfrey v. Connecticut Co., 98 Conn. 63, 69, 118 A. 446; Dibble v. New York, N. H. H.R. Co., 100 Conn. 130, 140, 123 A. 124; Firszt v. Capitol Park Realty Co., 98 Conn. 627, 638, 120 A. 300; Sickmund v. Connecticut Co., 122 Conn. 375, 382, 189 A. 876; Miller v. Poli's New England Theatres, Inc., 125 Conn. 610, 615, 7 A.2d 845; Wray v. Fairfield Amusement Co., 126 Conn. 221, 224, 10 A.2d 600. The only basis upon which the jury could have found the defendants negligent was testimony as to the circumstances of the plaintiff's fall and photographs of the footrest and adjacent mechanism. As against the other evidence in the case, this would not reasonably justify a conclusion that the defendants were negligent in using a coach constructed as was the one in question. The only evidence in support of the contention that there was negligence in the operation of the train was that there was a "jolt," that it "jerked and jolted" and that the plaintiff fell. He testified, however, that the jolt or jerk did not cause him to fall; he was at the time standing on one foot, with his other caught under the seat ahead of that in which he had been sitting; and while there was evidence that at the time there were many passengers standing in the aisle of the car, there was none that any of these were affected. The evidence was insufficient to afford a reasonable basis for a conclusion that the train was stopping in so unusual a manner as to constitute negligence. Rosenthal v. New York, N. H. H.R. Co., 88 Conn. 65, 67, 89 A. 888; Belledeau v. Connecticut Co., 110 Conn. 625, 628, 149 A. 127.