Cole

These cases were consolidated on appeal. They are actions brought by the father, Charles A. Cole, to recover for the loss of two minor daughters who were killed in the crossing accident at the same time their mother was seriously injured. The facts are stated in the opinion of this court on an appeal from a judgment rendered in favor of the mother entitled Spokane, Portland & Seattle Railway Co. v. Cole, 40 F.(2d) 172 . The verdict and judgment for the death of the daughter, Leona J. Cole, aged 18 years and 8 months, was for $2,000 and for the death of the younger daughter, Jacqueline A. Cole, aged 8, was for $2,500.

The appellant presents only two questions, an assignment of error based upon a requested instruction, and the alleged abuse of discretion of the trial court in refusing a new trial because of an excessive verdict.

The first contention is based upon the claim that the duty of the railway company toward the occupants of the automobile who were injured in the crossing accident, is measured by the rule governing the duty of a railroad company toward licensees rather than toward trespassers, or invitees, traveling upon a highway crossing a track. It is conceded that the…