The opinion of the court was delivered by: HERLANDS
HERLANDS, District Judge.
In this trial of a personal injuries action brought by a passenger against the railroad, the attorneys have submitted conflicting requests to charge on the subject of the degree or standard of care owing by the defendant to the plaintiff. The question is one of New York law, as the accident occurred in that State and this court's jurisdiction is based on diversity.
In McLean v. Triboro Coach Corp., 1950, 302 N.Y. 49, 51, 96 N.E.2d 83, the New York Court of Appeals cast some doubt upon the soundness of the prevailing rule of "degrees" of care, but explicitly said that the court expressed "no opinion upon the subject" (302 N.Y. at page 51, 96 N.E.2d at page 84).
In Krasnow v. National Airlines, Inc., 2 Cir., 1955, 228 F.2d 326, 328, the Court of Appeals for this circuit said that the New York cases are "conflicting," "go both ways on this question," but that McLean shows "which way the breeze is blowing."
Is more than a "trend" forecast by the detectable winds of doctrine?
This court, sitting at nisi prius, must apply "what the state law is, not what it ought to be." Klaxon Co. v. Stentor Electric Mfg. Co., 1941, 313 U.S. 487, 497, 61 S. Ct. 1020, 1022, 85 L. Ed. 1477. There is a duty to decide what the law of New York is, but not to anticipate or speculate on the subject of what that law shall some day be.
The New York cases speak of the common carrier's duty to use the highest degree of care or the utmost care in regard to the design, construction and maintenance of dangerous, unsafe or defective roadbeds, machinery, cars and appliances. Levine v. Long Island R. Co., 1942, 289 N.Y. 591, 43 N.E.2d 722; Stierle v. Union Railway Co., 1898, 156 N.Y. 70, 73, 50 N.E. 419, 156 N.Y. 684, 50 N.E. 834; Deyo v. N.Y. Central R. Co., 1865, 34 N.Y. 9, 10; Bowen v. N.Y. Central R. Co., 1858, 18 N.Y. 408, 411. This court will apply that standard of care in charging the jury.
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