James Clark McReynolds

“ Negligence by the railway company is essential to a recovery; and there is not a scintilla of evidence to show this under the most favorable view of the testimony urged by counsel for defendant in error. When it first became possible for the engineer to see signal lights 1,254 feet away he had a right to suppose the brakeman was standing there on guard. Immediately, he says, the customary signal was sounded. No duty to the brakeman demanded an instant effort to stop the train,-the indicated danger was more than half a mile away. ”

“ People, 140 Ill. 46, 29 N. E. 700.
Following local practice, at close of all the evidence a motion was made to dismiss as of nonsuit, because negligence by the railroad had not been shown. The court denied this and submitted two issues to the jury,-'whether the intestate of the plaintiff was killed by the negligence of the defendant, as alleged in the complaint,' and 'what damage, if any, is the plaintiff entitled to recover.' In connection with these a lengthy and rather involved charge was given, the objections to which it is not now necessary for us to consider. ”

“ We think the motion to dismiss should have been granted. The judgment below is accordingly reversed and the cause remanded to the Supreme Court of North Carolina for further proceedings not inconsistent with this opinion. ”