Hurlburt v. Erie R.

221 F. 911 | 6th Cir. | 1915

McCADL, District Judge.

In this case the plaintiffs, as administrators of Sage Hurlburt, sue the defendant for negligently running its engine and train of cars, against and over him, resulting in his death. At the close of plaintiffs’ evidence, the court below directed a verdict in favor of the defendant. Plaintiffs excepted and sued out a writ of error to this court.

The only error assigned that need be noticed goes to the action of the court in directing a verdict for the defendant. The facts and circumstances incident to the death of Sage Hurlburt, are fully stated in the opinion of the court, in Erie Railroad Co. v. Emma Hurlburt, No. 2531, 221 Fed. 907, - C. C. A. -, handed down to-day. We deem it unnecessary to restate them. It is sufficient to say that the reasons given for the conclusion reached in that case, applied with equal, or even greater, force here. The undisputed evidence is that while Sage Hurlburt was driving a horse and buggy along a highway, at .a point where it crossed defendant’s railroad, he negligently attempted to cross the track and was killed by a moving train.

We must not be understood as holding that the railroad company was free from negligence. It is not necessary to decide that question, since the negligence of the deceased, if a proximate cause of the accident, bars the right of recovery. We think that it was not error in the court below to direct a verdict for the defendant.

Affirmed, with costs.