Hamilton v. Delaware, Lackawanna & Western Railroad

13 A. 29, 50 N.J.L. 263, 1888 N.J. Sup. Ct. LEXIS 101

Opinion

Per Curiam.

This suit was brought by an administratrix under the statute relating to deaths caused by negligence. The deceased was crossing the track of the defendant’s road and was killed by a passing train.

We think, on the proofs exhibited at the trial, that there should have been a non-suit. On the plaintiff^ own case it was indisputable that the accident was*, in fact, occasioned by want of care by the deceased in crossing the road. Her own witness testified in distinct terms, and the statement was repeated, that the deceased walked upon the track without looking either up or down it. If she had looked she would have seen the train in plain sight. It cannot be claimed that she was thrown off her guard by her attention being attracted by any object. There is nothing in the case on which to found such an inference. The testimony referred to is not either explained or contradicted. There is no legal foundation for this verdict.

The rule must be made absolute.