
    No. 271
    PRETTYMAN v. PENNSYLVANIA CO.
    U. S. Court of Appeals, Sixth Circuit
    No. 3631.
    Nov. 7, 1922.
    284 Fed. Rep. 562
    MASTER AND SERVANT — Section hand killed by train on. a crossing railroad — Company held not liable.
    This was an action at law brought in the district court at Cleveland by Ida Prettyman, Admx., against the Penna. Co. Judgment was given for defendant, to reverse which the plaintiq prosecuted error.
    KNAPPEN, DENISON and DONAHUE, Cir. Judges.
    Error to the District Court at Cleveland. Westenhaver, District- Judge
    Attorneys — C. H. Hendel, Mansfield (Carl J Gugler, Galion, and Brucker & Henkel, Mansfield, oi brief), for Prettyman; W. C. Boyle, Clevelanc (Squire, Sanders & Dempsey on brief), for Rail road.
   Epitomized Opinion

KNAPPEN, Circuit Judge:

Defendant’s tracts, at Marion, Ohio, intersect, at right angles, three tracks which substantially parallel each other, the distance across the three being about 25 feet. Its track gang had been -working at the intersection of the Big Four and Penna. The job being nearly completed, two 'of the men were left to finish, and carry the tools across the other two tracks and load them on to a ear, which, was then to be driven to the place where the other men had gone to work, a short distance away. One load was carried to the car, and in -getting the remainder, while crossing the Erie tracks, the decedent was struck by an engine and was killed. The negligence asserted is (1) failure to furnish a safe place to work, and (2), failure to protect the decedent, in crossing the tracks, either by guards or by proper rules and regulations.

At the conclusion of plaintiff.’s testimony, the trial judge directed a judgment for defendant for lack of proof of actionable negligence proximately causing decedent’s death. The Court of Appeals held:

The action occurred in the afternoon, and in broad daylight. His work.at the intersection was complete. In carrying the tools across the track he is not shown to have been in a position where his attention would naturally be diverted from the dangers always present at track intersections, nor would he seem normally to have been so engrossed in his work as to produce that result, nor was such shown to be the fact. No authorities arei cited, which, under the facts of this case, seem to sustain the contentior that the action occurred through any negligenct or defendant’s part. The trial court properly hele that there was no substantial evidence of any negli genee on defendant’s part causing or contributing to the accident, and the verdict for the defendant was thus properly directed.

This action was not in conflict with Nelson v. Cultivator Co., 188 Fed. 620, that a verdict should no1 be directed for defendant merely because the tria judge feels that, should the jury find in plaintiff’s favor, he would regard it his duty, in the exereisi of a sound judicial discretion, to set the verdict aside

The error assigned upon denial of a motion for £ new trial, has not been argued here. The judgmen of the district court is affirmed.  