NEW YORK, O. & W. RY. CO. v. McHALE

NEW YORK, O. & W. RY. CO. v. McHALE. No. 5018. Circuit Court of Appeals, Third Circuit. June 30, 1933. Rehearing Denied Sept. 7, 1933. Paul G. Collins and M. J. Martin, both of Scranton, Pa., for appellant. Stanley F. Coar and David J. Reedy, both of Scranton, Pa., for appellee. 'Before BUFFINGTON, WOOLLEY, and THOMPSON, Circuit Judges. [MAJORITY — THOMPSON, Circuit Judge.] THOMPSON, Circuit Judge. This is an appeal from a judgment entered by the District Court for the Middle District of Pennsylvania. The plaintiff brought an action in trespass to recover for personal injuries alleged to have been sustained by him as a result of the defendant’s negligence. The defendant’s railroad passes through the city of Scranton, Pa. Its single tracks intersect with a public street known as Durkin avenue. The accident occurred on a dark and cloudy winter night. The plaintiff testified that at about 8:30 p. m: he attempted to cross the tracks at this intersection; that, before he committed himself to the crossing, he stopped, looked, and listened; that he did not see any train nor hear any warning signals; that, when he was about to step off the far rail, he was struck by the defendant’s locomotive which was running, backward; and that no warning of the locomotive’s approach was given by bell,.light, or whistle. The jury returned a verdict in favor of the plaintiff. The questions involved in this appeal are substantially the same as those in the case of New York, Ontario & Western Railway Company v. Willard Jones, 66 F. (2d) 556, in which an opinion has been filed by this court as of this date. For the reasons therein set forth, the judgment of the court below is affirmed.