Callary v. Easton Transit Co.

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.

Appeal, No. 356, Jan. T., 1897,. by plaintiffs, from order of C. P. Northampton Co., Dec. T.,. 1894, No. 63, refusing to take off nonsuit. Trespass for the death of a son six years old. Before Schuyler, P. J. At the trial it appeared that on November 13, 1894, plain-, tiffs’ son, a child about six years old, while playing upon a street on which the defendant operated an electric railway, suddenly darted upon the track immediately in front of an approaching car, and it was not possible to stop the car in time to-save the boy. Under objection and exception the court refused to permit-plaintiffs to call George Barnet, tbe motorman of tbe car, as if for cross-examination. [2] The court entered a compulsory nonsuit which it subsequently refused to take off. Errors assigned were (1) refusal to take off nonsuit; (2) ruling on evidence, quoting the bill of exceptions.