Joseph Creech was severely injured while acting as head brakeman for the New York, Chicago and St. Louis Railway Company, and thereafter died of his injuries. His administra-trix brought an action for wrongful death in the Huron Common Pleas, and a motion in favor of the Company for a directed verdict was granted.
Error was prosecuted and it is claimed that the decedent stumbled over a cattle pass. The Court of Appeals held:
1. Witness called in behalf of Creech testified that decedent was found 15 feet from cattle pass; and the ties extending 16 inches past the rails, with the train moving it would be practically impossible for him to walk along the ends of the ties in crossing the cattle pass.
Attorneys—Rowley & Carpenter for Creech; C. P. and R. D. Wickman and E. G. Morton for Company; all of Norwalk.2. Negligence could not be predicated upon the failure of the company to give a signal of the starting of the train if there was such a failure, because according to the testimony of all the witnesses who saw the transaction, the train was moving in its final departure from the station at the time the de-’ cedent’s latern was seen along the tracks.
3. Evidence of decedent before he died explaining injury was clearly incompetent.
4. As there was no evidence of negligence on part of the company trial court did not err in directing a verdict. .
Judgment affirmed.