278 F2d 331 Harshman v. Baltimore & Ohio Railroad Company

278 F.2d 331

Marguerite HARSHMAN, Administratrix of the Estate of Ray E. Harshman, Deceased, Appellant
v.
BALTIMORE & OHIO RAILROAD COMPANY, a Corporation.

No. 13155.

United States Court of Appeals Third Circuit.

Argued May 12, 1960.

Decided May 17, 1960.

Appeal from the United States District Court for the Western District of Pennsylvania; Joseph P. Willson, Judge.

Hymen Schlesinger, Pittsburgh, Pa. (John A. DeMay, McArdle, Harrington & McLaughlin, Pittsburgh, Pa., on the brief), for appellant.

Bruce R. Martin, Pittsburgh, Pa. (E. V. Buckley, Mercer & Buckley, Pittsburgh, Pa., on the brief), for appellee.

Before GOODRICH, McLAUGHLIN and STALEY, Circuit Judges.

PER CURIAM.

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1

Ray E. Harshman, in his lifetime, suffered an accident while in the employ of the defendant railroad company. He has since died from causes unconnected with the accident and this action has been continued by his administratrix. The merits of the plaintiff's case were thoroughly discussed at a pre-trial hearing. At its conclusion and upon receipt of a supplementary memorandum from the plaintiff, the trial judge caused judgment to be entered in favor of the defendant. The basis of the court's action was that, assuming the plaintiff could prove all the facts which she alleged she was prepared to prove and assuming further that the plaintiff's position on the admissibility of certain statements was decided in favor of the plaintiff, still no claim on which recovery could be had was shown. We think the trial judge was right in his conclusion. We do not, therefore, need to go into the always difficult question of when hearsay statements may be received as part of the res gestae.

2

The judgment of the district court will be affirmed.