Cincinnati, N. O. & T. P. Ry. Co. v. Craig

209 F. 50, 126 C.C.A. 192, 1913 U.S. App. LEXIS 1761

Opinion

PER CURIAM.

The intestate children of defendant in error were struck and killed by the locomotive engine of plaintiff in error, and recovery had under consolidated action. The meritorious question presented by the motion to direct verdict is whether it appears by substantially undisputed testimony that those in charge of the engine used every possible means to stop the train as soon as the children appeared as an obstruction on the track, and so brought the defendant within the protection of the Tennessee Precautions Act (Shannon’s Code, § 1574, subd. 4). _ _

_ _ Giving to the testimony a construction most favorable to plaintiff, we think it would tend to support a conclusion that the children should have been seen 400 to 500 feet ahead of the engine, but that they were not in fact seen, and therefore no attempt made to stop the engine, or to. give the statutory warnings, until they were but 175 feet away.

The judgments are accordingly affirmed, with costs.