Norwich bulletin., 1915-07-19
VERDICT err ASIDE
AZ AeAINeT TIE EWDENcE
Judge Greene RuIes Against Allowing
Verdict Of $1,000 fsr L. Roma.


OF Montville, Judge Gardiner Greene
OF the superior court has granted the
motion OF the defendant company to
set aside the $4,000 verdict which a
jury IN the superior court here gave
Tor Roma The verdict Is set aside
on the ground that 1t Is contrary to
the evidence.
Roma lost his right leg in an eleva-
tor accident on May 13, 1872, at the
Specialties company mill ar MontvfIle.
In his memorandum OF decision
Judge Greene says in part:
The first count makes the immediate
cause Of the injury the sudden jolting
and starting upward Of the elevator,
throwing the plaintiff down with great
force. i
The second count made no a11ega-
ton as to any bad working OF the ele-
vator, whether in jumping and start
ing or otherwise, but alleged that the
defendant ought to have protected the
entrance to the elevator by q proper
gate, etc, etc
In order for the plaintiff to recover
under the first count. 1t was necessary
for him to prove a sudden jolt and
throwing him down upon the floor OF
the elevator. If he failed to prove
this sudden Jolt and upward move
ment, there was nothing In the allega-
lions OF the second count OF the COM
plant to connect the lack Of a proper
4 EdL9 WIFI lu6 aQlaluC1AlS DCAtl8 Ok106Al
between the elevator and the upper
| floor. II the Jury had found that
there was no proper gate 70 keep the
PLAINTIFF out of the elevator while
moving, and that for lack of a proper
gate he got on to the elevator while
moving, they had then found the ex-
istence of an occasion or opportunity
for the plaintiff to be hurt in case
anything happened to hurt him while
on the elevator. But there was moth
ing IN the allegations OF the second
count to show how or why he got
caught between the elevator and the
upper floor; neither was there any
| thing at all IN the proof, excepting
the sudden jolt and upward move
ment alleged in the first count. So
that II there was a failure to prove
the sudden Jolt and upward movement,
there was nothing at all in the evil
dence to connect the presence OF the
tpfafntfn upon the elevator with the
linJary which he received, any further
than the fact that his being there fur
nished an occasion for being hurt
there.
The Jury in this case must neces-
sarily have found under the charge,
that the elevator suddenly gave a jolt
or jump, started upward, throwing
the plaintiff down upon the floor OF
the elevator, by reason OF which the
crushing of the plaintiff between the
elevator and the floor above occur
red.
The piaintfff. in testifyfng in this
action. said that he was standing on
the second floor, at some distance
from the elevator. and saw it was
coming UP; that he walked over TO the
elevator and stood by 1t, and as the
elevator came slowly up to the level
/ of the room floor he stepped onto 1t,
and the elevator made a jump Of a
/ foot and a half or two feet, and threw
| him down, and then went up SO fast
that he had not got hold of the chain
to stop 1t, and consequently his legs
were caught between the floor of the
elevator and the top Of the room.
The plaintiff had, before bringing
4 this action, sued his employer, The
Climax Co, the tenant Of the upper
floor of the building and in support
of that suit had testified, and In his
testimony had given a version of the
accident absolutely different from
that to which he testified in this &C
1 ton
In the action against the Climax
the complaint contained two counts,
the first of which alleged a sudden
jolting and starting upward, similar
to the allegation IN the first count in
the present action. The second
count In the Climax Co. action alleged
/ that the plaintiff stepped carefully
into the elevator. and while he was on
LIT he was caught, pinched, bruised,
/ with great force and violence between
the floor of the elevator and the mill
4 floor above.
The plaintiff in his testimony in the
former action said nothing about any
| jolt, Jar, or sudden starting upward,
i although his first count called for such
i testimony; If it could truthfully have
been given, and it was SO evident that
his testimony entirely failed to sup
4 port that count, which alleged sudden
starting, jolting, that the trial judge
! in the Climax Co. case instructed the
jury that there could be no recovery
by the plaintiff upon the hrst count
in the complaint; and the supreme
court ruled that there was no error IN
the judges excluding this count from
the consideration of the jury because
there was no evidence to support It
/ In fact, it seemed to the trial judge IN
/ this action perfectly clear that the
i plaintiff had committed deliberate
perjury in either one casesQr the other
and. IN the opinion OF the Judge. In
view Of other testimony in the case
he had done II twice, neither OF his
counts being consistent with the teS-
tfmony OF the eye witness Of the &C
oident. James R. Tyler, an apparently
dfsinterested person. Mr. Tyler tes-
tined that he was in the room in
which the plaintiff took the elevator
from so to as feet from the elevator
and in plain view OF It: that he looked
and saw the elevator halfway be-
l tween the moor ana Coil1nS OL dtS
room going at its ordinary speed -
which the witnesses generally say
was slow-and making no change OF
speed as it assembled; that plaintiff sal
on the floor Of the elevator, facing
south towards the room. with his legs
Hanging over the south side OF the
4 elevator, and his arms folded, LOOKING
around; that he so sat until his head
started to go through the opening II
the f1oer OF the third story, and theI
he turned and reached with his LEFT
hand for the chain which was pro-
vided for stopping the elevator. max
ing two or three grabs at the chair
but failing to get 1t, that he then turn
j ed the other way to get out, and got
his right leg out. but that his LETT leg
Il remained in the elevator when he
twas caught between the floor OF the
E elevator and the ceiling OF the room;
that as he was caught he was kicking
pretty well with his right leg, lying
lon his stomach, on the moor or the