Middleton v. Norfolk & W. Ry. Co.

SOPER, Circuit Judge.

Appeal is taken from the judgment of the District Court whereby the pending action was dismissed under Section 41(b) of the Federal Rules of Civil Procedure, 28 U.S.C.A. following section 723c, at the close of the plaintiff’s case on the ground that the evidence failed to show that the plaintiff was entitled to recover. John C. Middleton, twenty-one years of age, was struck and killed by a train of the defendant Railway Company at 8:45 P.M. Eastern Daylight Saving Time, on August 31, 1945, on the railroad track at or near the crossing of a dirt road four miles from…