Witiak v. Delaware & Hudson R. R.

McLaughlin, circuit judge.

This matter involves a railroad grade crossing accident wherein plaintiff’s decedent, a pedestrian, was “sidestruck” by some part of a train of the defendant, receiving such injuries that she died the same day. The District Court on motion dismissed the complaint on the ground of the decedent’s contributory negligence. 59 F.Supp. 1009.

The complaint sets up the jurisdictional facts with appropriate allegations that the defendant is and was on .the day of the accident, a carrier for hire and that it maintained a described public grade crossing. It is alleged that it…