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Falzarano v. Delaware

Decided: September 22, 1937.

CLEMENT FALZARANO, PLAINTIFF-RESPONDENT,
v.
DELAWARE, LACKAWANNA AND WESTERN RAILROAD COMPANY, DEFENDANT-APPELLANT



On appeal from the Supreme Court, Union Circuit.

For the defendant-appellant, Frederick B. Scott (John L. Ridley, of counsel).

for the plaintiff-respondent, David T. Wilentz.

Wells

The opinion of the court was delivered by

WELLS, J. This is an appeal from a judgment entered in the Supreme Court at the Union Circuit in favor of the plaintiff-respondent against the defendant-appellant for personal injuries inflicted upon the plaintiff while a passenger on defendant's train by a drunken negro fellow passenger.

The suit was originally brought against the defendant railroad company, its conductor, O'Donnell, its ticket-collector, Mason, and its engineer, Dunham, all of whom were members of the crew of the train on which the shooting occurred, and Richardson, the negro passenger, who did the shooting.

At the trial, a voluntary nonsuit was entered in favor of the defendant Dunham.

The defendant Richardson filed no answer and the case proceeded only as against the defendant railroad company and defendants O'Donnell and Mason. At the conclusion of the plaintiff's case a nonsuit was entered in favor of the defendants O'Donnell and Mason.

The jury rendered a verdict in favor of the plaintiff against the defendant railroad company in the sum of $22,000, which on a rule to show cause was reduced to $10,000, for which amount the judgment appealed from was, by consent of plaintiff, entered.

Sometime after the entry of this judgment the defendant railroad company obtained a second rule to show cause to set aside the verdict on the ground that there had been turned over to the jury, and that the jury had in its possession during its deliberations, written statements of the defendants O'Donnell and Mason. These statements had been admitted in evidence as against these two defendants respectively but had been excluded as evidence against the defendant railroad

company as not binding on it, and the judge had expressly so charged the jury.

Depositions taken on the second rule to show cause indicated that four of the jurors saw the two statements in the jury room and that one or more of them read or glanced over at least one of the statements, and that both of them were read by one of the jurors; that the jurors understood when the statements were admitted in evidence that they were to be considered only as against Mason and O'Donnell, who made them, and not against the railroad company, and that after ...


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