Opinion
June 29, 1945.
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 the owner and operator of an automobile which, while crossing the tracks of the defendant railroad in the village of Lisle, 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 memorandum:
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.