Glenna Frances Tuck, Administratrix of the Estate of George William Tuck, Deceased v. The Chesapeake and Ohio Railway Company, a Corporation

SOBELOFF, Circuit Judge.

This is one of the rare and exceptional cases in which a trial judge is justified in dismissing a case upon the plaintiff’s opening statement.

Counsel related that the plaintiff’s decedent, traveling alone at night on a West Virginia highway, near his home, drove his automobile into the side of the nineteenth car of a moving coal train and was killed. “I think,” the lawyer said, “the evidence will be that it was foggy and it had been raining and visibility was poor. We also believe that we will show that the railroad wits negligent in maintaining a crossing at the place…