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DeMarino v. Baltimore and Ohio Railroad Company, Appellant.

Negligence — Automobiles — Railroads — Evidence — Contributory negligence.

1. In an action for injuries sustained by plaintiff when the automobile he was driving was struck by defendant's train at a railroad crossing, in which it appeared, inter alia, that the collision occurred on a rainy, foggy night; that, as plaintiff approached the crossing he saw the blinker lights flashing, heard a whistle and came to a stop; that, after a train had passed, the blinker lights went out and plaintiff, after looking to left and right, proceeded forward, continuing to look; that a stationary train on the second track partially obscured his vision; and that he was struck when he had nearly cleared the third track; it was Held that the questions of negligence and contributory negligence were for the jury. [314-17]

Practice — Verdict — Excessive — Remittitur — Verdict for more than amount claimed — Amendments.

2. Where it appeared that the action had been brought by plaintiff to recover the sum of $3,000 damages; that the jury had brought in a verdict of $5,000; that plaintiff did not seek to amend his statement of claim to conform to the amount of the verdict; and that the evidence concerning injuries did not support a verdict of more than $3,000; it was Held that an order requiring plaintiff to remit all of the verdict over that amount or suffer a new trial was properly entered. [317]

Argued March 24, 1944.

PER CURIAM, April 11, 1944:

The judgment of the court below in the above-entitled case is affirmed on the opinion of Judge McNAUGHER; costs to be paid by appellant.

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DeMARINO v. B. O. R. R. CO
(Apr 11, 1944)