Although there was evidence from which the jury could have found that the plaintiff’s husband, an employee of the defendant company, for whose homicide the suit was brought, was killed by the running of the defendant’s train, yet as it neither affirmatively appeared that he was without negligence, nor that the defendant was negligent, the judge of the superior court did not err in refusing to sanction a petition for certiorari, complaining of the grant of a nonsuit upon the trial of the case in the city court.
Judgment affirmed.
All the Justices concurring, except Lewis, J., absent.