Van Norden v. Charles R. McCormick Lumber Co. of Delaware

DIETRICH, Circuit Judge.

This is an action for the identical personal injury for which damages were sought in Van Norden v. McCormick Lbr. Co. (C. C. A.) 17 F.(2d) 568. The parties also are the same, and the negligence alleged is that specified under “(2)” in the former opinion. Correctly, we think, the court below held that the judgment in that case operates as a judicial estoppel. The only distinctive feature here set forth is that the men who were in control of the windlass and whose negligence, it is said, caused the accident, were fellow servants with plaintiff, and that defendant had,…