Opinion
No. 3678.
October 2, 1934.
Appeal from the District Court of the United States for the Southern District of West Virginia, at Bluefield.
Action by Zella Nutter, administratrix of the estate of Paul Nutter, deceased, against the Chesapeake Ohio Railway Company. Judgment for defendant, and plaintiff appeals.
Affirmed.
The engineer of defendant's locomotive testified that train was proceeding at forty miles per hour with bell ringing, that he blew six whistle blasts about a mile from station, that it was light enough to see ahead, that he was keeping proper lookout and could see shed in which deceased sought shelter from rain for 600 feet and platform opposite it for 500 feet as he came on curve about six or seven hundred feet from station, but that his view was entirely cut off 200 feet from shed, that first thing that attracted his attention was deceased's mother stepping off track directly in front of engine, that he next saw body of decedent's father, also struck by train, roll off front of engine, and that he stopped train within about 700 feet; while fireman testified that he blew whistle, that headlight was burning and automatic engine bell ringing, that he could not see platform or shed until train was within 30 feet therefrom, that he first saw decedent's mother crossing in front of engine about 30 feet ahead of it and could not see decedent sooner because his view was cut off by engine; and decedent's mother testified that she heard whistle, heard train and started across tracks ahead of deceased and his father as soon as they heard whistle.
David D. Ashworth and Ben H. Ashworth, both of Beckley, W. Va. (W.A. Thornhill, Jr., of Beckley, W. Va., on the brief), for appellant.
C.W. Strickling, of Huntington, W. Va. (Fitzpatrick, Brown Davis, of Huntington, W. Va., on the brief), for appellee.
Before PARKER and NORTHCOTT, Circuit Judges, and CHESNUT, District Judge.
This is an action for wrongful death brought by the administratrix of the little boy who was killed in the distressing accident described in Nutter v. C. O. Ry. Co., 113 W. Va. 94, 166 S.E. 815. We need not decide whether the father's negligence was imputable to the child under the circumstances disclosed, nor whether there was error in admitting evidence tending to show negligence on the part of the father. For the reasons given by the Supreme Court of Appeals of West Virginia in the case above cited, which was brought by the administratrix of the father, we think that there was no actionable negligence on the part of the defendant railway company, and that in this case, as well as in that, verdict was properly directed in its favor. The judgment appealed from will be affirmed.
Affirmed.