Dorothy Houseknecht, as Administratrix of the Estate of Harry D. Houseknecht, Deceased, Respondent, v. The Delaware, Lackawanna & Western Railroad Company et al., Appellants

Dorothy Houseknecht, as Administratrix of the Estate of Harry D. Houseknecht, Deceased, Respondent, v. The Delaware, Lackawanna & Western Railroad Company et al., Appellants. [MAJORITY] Defendants, a railroad company and its engineer, have appealed from a judgment in plaintiff’s favor and from an order denying their motion for a new trial in an action by plaintiff to recover damages for the alleged wrongful death of her husband. Plaintiff’s intestate was a passenger in an automobile and while the car was crossing tracks of the defendant railroad in the village of Lisle it came into collision with one of defendant’s trains as a result of which plaintiff’s intestate was killed. The Trial Judge submitted to the jury the question of defendants’ negligence and the contributory negligence of plaintiff’s intestate. On these issues the jury found against defendants and the evidence sustains that finding. No issue was raised as to the amount of damages. Judgment and order appealed from affirmed, with costs. All concur, except Hill, P. J., and Foster, J., who dissent and vote to reverse and for a new trial in the following memoz’andum: The only issue submitted to the jury in this case was whether an adequate and timely warning of the approach of the train was given. The overwhelming weight of disinterested testimony was to the effect that such warning was given.