260 F2d 360 McLenaghan v. A Billow

260 F.2d 360

James McLENAGHAN, Administrator of the Estate of James
Murray, Appellant,
v.
Robert A. BILLOW.

No. 12629.

United States Court of Appeals Third Circuit.

Argued Nov. 7, 1958.
Decided Nov. 17, 1958, Rehearing Denied Dec. 5, 1958.

Benjamin Pomerantz, Philadelphia, Pa. (Maurice A. Hartnett, III, Dover, Del., on the brief), for appellant.

William Prickett, Wilmington, Del. (William F. Taylor, Prickett & Prickett, Wilmington, Del., on the brief), for appellee.

Before MATIS, KALODNER and HASTIE, Circuit Judges.

PER CURIAM.

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1

The plaintiff administrator appeals from a summary judgment entered against him in the District Court for the District of Delaware in an action brought to recover damages for the wrongful death of his decedent who was killed when an automobile driven by the defendant struck him while he was walking on a highway at night south of Dover. The facts are fully stated in the opinion filed in the District Court by Judge Layton, 161 F.Supp. 835, and need not be repeated here. Suffice it to say that we are in full accord with the conclusion of the district court, for the reasons stated in Judge Layton's opinion, that the uncontroverted facts, as to the existence of which no genuine issue existed, disclosed that the plaintiff's decedent was guilty of contributory negligence as a matter of Delaware law and that the Delaware doctrine of the last clear chance was not applicable. The district court accordingly did not err in entering summary judgment on the defendant's motion.

2

The judgment of the district court will be affirmed.