
    CENTRAL R. CO. OF NEW JERSEY v. TOOLE.
    No. 5899.
    Circuit Court of Appeals, Third Circuit.
    Jan. 18, 1936.
    Arthur G. Dickson, of Philadelphia, Pa. (Charles E. Miller, of New York City, of counsel), for appellant.
    Arthur Minster, of Philadelphia, Pa., for appellee.
    Before BUFFINGTON, DAVIS, and THOMPSON, Circuit Judges.
   THOMPSON, Circuit Judge.

This is an appeal from a judgment of the District Court for the Eastern District of Pennsylvania. The appellee brought an action in trespass to recover damages for-the death of her husband who was struck and killed by a freight train of the appellant company. The jury rendered a verdict for the appellee, and judgment was entered thereon. The appellant contends that the court erred in refusing to direct a verdict for it. It maintains that the court should have decided as a matter of law that the appellant was not guilty of negligence and that the decedent was guilty of contributory negligence.

We find that these were issues of fact, properly submitted to the jury. Witnesses for the appellee testified that the decedent was walking near the north side of the tracks and was going in the direction of a public crossing in order to reach his home. They also testified that as the freight train approached the crossing no whistle was blown and no bell rung. Several witnesses for the appellee testified that they saw the body of the decedent about 10 feet from the crossing, and that the train had backed up. Witnesses for the appellant, in contradiction, testified that the whistles were blown and the bell was rung, and that the decedent was struck while lying between the rails at a distance from the crossing variously estimated by the appellant’s witnesses as ISO to 800 feet. They denied that the train had been backed up. They also testified that the freight train was operated at a reasonable rate of speed, and that the train was brought to a sudden stop by the application of the brakes. The court properly left these controverted issues to the jury. Even though the court might have made different fact findings from the testimony, it would not have been justified in directing a verdict. We find no error in the charge.

The judgment is affirmed.  