Callary v. Easton Transit Co.
Callary v. Easton Transit Co.
Opinion of the Court
This case was properly disposed of by the learned court below. The undisputed testimony on the part of the plaintiffs established beyond all question that the death of the child was caused by his suddenly darting upon the track immediately in front of the approaching car, and that it was not possible to stop the car in time to prevent the collision. In such circumstances, as we have frequently held, there is no right of recovery, because there is no breach of legal duty to the child.
There is no merit in the second assignment. The motorman, Barnet, was neither a party nor a person having legal interest in the pending suit, and hence the plaintiffs had no right to call him as if on cross-examination. The remaining assignments are of no importance and cannot be sustained.
Judgment affirmed.
Reference
- Full Case Name
- Patrick Callary and Catharine Callary v. The Easton Transit Company
- Cited By
- 6 cases
- Status
- Published
- Syllabus
- Negligence — Street railway — Nonsuit. In an action against a street railway company to recover damages for-the death of a child six years old, a nonsuit is properly entered where the-undisputed testimony on the part of the plaintiff establishes beyond all. question that the death of the child was caused by his suddenly darting upon the track immediately in front of the approaching car, and that it was not possible to stop the car in time to prevent a collision. Evidence — Gross-examination — Party without interest — Gross-examination of motorman in negligence case. In an action against a street railway company to recover damages-for death, the motorman who ran the car of the defendant company-which caused the death cannot be compelled to testify as if under cross-examination by the plaintiff, inasmuch as he is neither a party nor a person having legal interest in the pending suit.