Callary v. Easton Transit Co.

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.